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LA/A
F
(l^dH^^y^' ^f
juue Ajb*« < c*
"CAPE TIMS" LAW REPORTS.
^psj
K UBfflS =
A. REOORD **->'
OF
EVERY MATTER DISPOSED OF IN THE SUPREME COURT,
DURING THE YEAR, 1891.
tDlTBD B?
J. D. 8HEIL,
OF THK INNER TEMPLE, BARRI8TER-AT-LAW, AND ADVOCATE OF THE
SUPREME COURT.
VOL. I,
(1891).
021
CAPE TOWN :
PRINTB1> ANt> PUBLISHED BY MURRAY * ST. LEGER, ST. GEORGE'S STREET.
1802.
ERRATA.
In the Estate of the late J. P. Tiran — page 98 — Omit in 6th line of head — note, and in first line of
judgment (p. 99) the words the w>dow and.
In seventa line from bottom of page 98 read daughter for widow.
At page 153 in 18th line from top (second line of judgment) read appeal for fee.
TABLE OF CASES.
VOL. I.
PAGE
Abrahamse, Dirk, Petition of ... ... 101
Abrahamae v. Abrahamse... ... 118, 122, 143
Ackermann, J. H. B., in the Insolvent
Estate of ... ... ... ... 69
Adkins, H. J., in re ... ... ... 124
Adshade, Petition of ... ... 20, 46
Albert District G. M. Go. (in liquidation), in
re 199,265
Albion Masonic Hall Go. (Limited), xn
re 182,209,253
Alexander, A., in re ... ... ... 2
Aiing v. The Bellevue Syndicate ... ... 326
Allwright, B., in re ... ... ... 19
Amsterdam, C, in re ... ... ... 19
Anderson & Mnrison v. The Colonial Gov-
ernment ... ... ... ... 259
Anderson 6 Mnrison v. The Omaruru G. M.
v/O. ... ... ... ... ... Oo
Arendse, J., in re
Armour v. Murray A St. Leger
Arthur, M., in re ... ... ... 124,
Askew v. Moller ...
Atkinson v. The Registrar of Deeds
Atmore, Elizabeth, Petition of
Attwell, R. G., in re ...
Aunn, R. H., in the Insolvent Estate of
Auret, A*, in re ...
Auret v. Executor of Haarhoff
Badenhorst, B. N., in re ...
Barn's Executors v. Haupt
Barnard, A., in the estate of the late
• •»
2
• • •
256
180,
190
24,
128
• ••
17
• • •
121
• • •
81
• « •
85
• V •
280
• • •
132
280,
285
• • •
198
• ••
807
Barnett A Co. v. The Namaqualand
sing Court ...
Barrington v. Barnard
Barry, J. D., in the estate of the late
Bartman v. Van Niekerk ...
Bate v. Nel
Baxter, W. M., in re
Beckham, W., in re
Bell, P. C, in re ...
Benally v. Benally
Berrange* v. Bmett
Berry, J. P., Petition of
Berry, R. J., in re
Beukes, Gideon, in re
Bevern, A., Petition of
Be v em's Bxecntors v. Ely
Beyers, M., in re ...
Bezuidenboud, M. E. J., in re
Bibbey v. Barnard
Birch, W. T., in re
Bisset, W. M., in re
Bloaro, B., in re ...
Board of Bxecutors v. Malan
Board of Executors v. Roux
Bodley v. Bodley ...
Boltman, P. J., t» re
Bolus, Harry, Petition of ...
Bond v. Bond
Boonzaier v. Castens
Boose, ▼. Wood head and others
Boshoff, W. H. P., in re ...
PAGE
Licen-
• • •
186
292,
294
• B •
281
• « •
228
• • •
103
• • •
253
188,
189
*• •
241
■ • •
135
• «•
179
• • •
234
• • •
83
• • •
124
274,
276
*••
82
• • •
264
• • •
120
• • •
83
• • •
147
• ■ •
11
• • B
58
• • •
117
• ••
19
■ • •
139
• • •
280
• ■ •
80
• ••
232
« • •
T69
61,68
Ml
179
11
TABLE OF CASES.
PAOB
Botha, J. A M in re ... ... ... 64
Botha, J. S., in the estate of ... ... 158
Botha, L. J., in re the Minor children of ... 156
Botha, N. J., Insolvent Estate of ... 291, 335
Botha, L. J. C, in re ... ... ... 269
Botha's Executors v. Deas Bros. ... ... 199
Botma v. Botma ... ... ... ... 72
Brasch v. Braech ... ... ... 215, 266
Breda's Assignees v. Edwards ... ... 263
Bresler, C. J. R. f D.son, in re
Brink, H. } in re ... ... ...
Blister, J. R., in re
Britz, G. J., in re ...
Broad, Charles, in re
Brown, J. M., in re ...
Brown & Bate v. Green ...
Bruce v. The Cape Town Council ...
Bruce v. Williams
B runner v. de Villiers
B rawer, Minors, in re
Bruwer, D. J. W. and others, Petition of
Bultfontein M. B. v. Armstrong and The
L. «fc S. A. Exploration Co.
Burger, B. J. J., Petition of
Burger, J A., in the estate of the late
Burger's Executrix v. Burger's Executor
Burgers v. Burgers
Burn, S. J., Petition of ...
Burn v. Burn
Burton, Win., jun., Petition of
Butler, J., Petition of
Cabrita, J. A., in re
Caffyn, R. H., in re
Cairncross v. Sheard
Campaan v. Campaan
Cape Central Railways (in liquidation), in
re ... ... ... 84,110,290,384
Cape Central Railways v. Walker ... ... 78
Cape of Good Hope Bank (in liquidation),
in re 2, 12, 18, 50, 67, 82, 85, 99, 121, 155, 216, 308
Cape of Good Hope Bank (in liquidation) v.
Arnoltz & Co. ... ... ... 103
Cape of Good Hope Bank (in liquidation),
in re Arnoltz's Estate... ... ... 99
Cape of Good Hope Bank (in liquidation) v.
Arnoltz, Junior ... ... ... 108
Cape of Good Hope Bank (in liquidation)
v. Belson ... ... ... 183, 281, 191
Cape of Good Hope Bank (in liquidation), in
re Coronet's Contract ... ... ... 60
Cape of Good Hope Bank (in liquidation) v.
DeneyB ... ... ... ... 82
Cape of Good Hope Bank (in liquidation) v.
East, Runciman and others ... 73, 70
Cape of Good Hope Bank (in liquidation) v.
Forde *fe Co. ... ... ... ... 137
Cape of Good Hope Bank (in liquidation) y.
Heath .,. ♦., .„ .,. 99
280
49
198
824
169
169
125
302
358
111
187
308
143, 192
19
232
190
... 143
... 170
182, 266, 307
... 280
... 234
... 73
... 186
366
20,57,111
PAOB
Cape~of Good Hope Bank (in liquidation) v.
UOCl ... ... ... ... ... w
Cape of Good Hope Bank (in liquidation)
v. Lawrence ... ... ... ... 199
Cape of Good Hope Bank (in liquidation) v.
Pilkington ... ... ... ... • 97
Cape of Good Hope Bank (in liquidation) r.
Porter ... ... . . ... 104
Cape of Good Hope Bank (in liquidation) v.
Robertson ... ... ... ... 34
Cape of Good Hope Bank (in liquidation), in
re Searle, F. A. ... ... ... 18
Cape of Good Hope Bank (in liquidation).
Second Report ... ... ... 21
Cape ef Good Hope Bank (in liquidation) v.
S A. Association ... ... ... 78
Cape of Good Hope Bank (in liquidation)
v. Stamper and others ... ... 178
Cape of Good Hope Bank (in liquidation).
Third Report ... ... ... 112
Cape of Good Hope Bank (in liquidation) v.
Twentyman ... ... 153, 170
Cape of Good Hope Bank (in liquidation)
y. Van Lier's Executors 18, 78, 104, 106, 283, 273
Cape of Good Hope Bank (in liquidation) v.
T UWvll ••• ••« ••• ••« £
Cape of Good Hope Bank (in liquidation) v.
Whitton ... ... ... ... 164
Cape of Good Hope Sayings Bank, Petition
of ... ... ... ... 308, 836
Cape Stock Farming Co. (Limited), in
re 233, 266, 276, 282, 289, 349
Cape Town Council v. The Metropolitan and
S. P. Railway Co 249, 253, 283
Cape-Transvaal G. M. Association (in liqui-
dation) ... ... ... ... 3
Caporn v. Marriott ... ... ... 304
Capora & Marriott v. Estherhuysen ... 324
Carelse v. Carelse ... ... ... 133
Cassell y. Schunke ... ... ... 324
Churchwardens, Dutch Reformed Church,
Aliwal North v. Green ... ... 144
Christie, R., in re the Minor Children of the
XI* I v • • • • • • «•• •«• • « » £ 14
Cilliers v. Pienaar and Wife ... 194, 201
Clack and Others vs. The R.M. of Graaff-
Reinet ... ... ... ... 78
Claremont and other Municipalities v. Ohls-
son's Cape Breweries ... ... 84> 196
Claridge v. Kellaway ... ... 47, 5 J
Oleghorn & Harris v. Hirsch ... ... 19
Cloete, J. H., in re ... ... ... 108
Cluver, P. D , in re ... ... ... 280
Coetzee, N. S. J., P.son, »« re ... ... 204
Coetzee, G. P. N., in re ... ... ... 280
Cohen, M , Petition of ... ... 307, 824
Cohen y. Stegmann ... ... ... 149
Colonial Government v. Morgenrood ... 84
Colonial Orphan Chamber v, Jgarnitz 50, 76, 34?
TABLE OF CASES.
• • •
111
PAGE
Combrinck v. My burgh ... ... 130, 135
Conradie, D. J M in the Insolvent Estate of ... 96
Cooper, H., in re ... ... ... ... 334
Copeland v. Short <fe Co 141, 143
Cornwall A Co. v. Gill ... 303
Coronel v. Ward & Weasels 134, 159
Conssmaker v. The G. W. Board of Executors 204
Craik, J., in the estate «f the late ... ... 190
Cranko's Executors v. Van Sohoor... ... 103
Cronge, P. D n in re ... ... ... 83
Cronje, C. A. J., in re ... ... ... 291
Crooks, W. J., Petition of 282
Croxier v. Crozier ... ... ... 73
Cunningham, M., Petition of ... 76, 111
Carle, G. B., in re 291
Carrie, W. J., in re ... ... ... 133
Curtisv. Day ... ... ... ... 208
Dahl v. Van der Merwe ... ... ... 226
Dalton v. Qnine ... ... ... 35, 50
Daly, Hendrika C, Petition of 166
Damaraland Mining & Exploration Company
(in liquidation), in re ... ... 78, 171, 190
Daniel & Co. v. Siebert & Van Eeden ... 323
D'Arc * Benson v. McDermott ... 19. 54, 77
Darter v. Great back ... ... ... 72
Darter Bros. * Walton v. Bresler ... ... 334
Davis, W. E. G., in re 184
Day, R^ in the insolvent estate of ... ... 21
De Beers Consolidated Mines (Limited) v.
Good ... ... ... ... 181
De Freitas v. De Preitas ... ... ... 809
De Jager, M. M. A., in re ... ... ... 103
De Klerk v. Marais ... ... ... 133
De Klerk v. De Klerk 29,58
De Korte, J. C, Petition of 285
Deneys & Baker, in re the ante-nuptial
contract of ... ... ... ... 183
Dessauer v. Dessaner ... ... 23, 84
De Swardt, 8. J. H., in re... ... ... 2
Devenish, D. G., in the insolvent estate of ... 309
De Waal & Co., in the Insolvent Estate of ... 54
De Waal, B. J., in re 124
De Waal, J. W. L M in re 324
De Wet, J. C. H., in re 2
De Wet, J. P., in re ... ... ... 2
De Villiers v. Baartman ... ... ... 103
Dodd, E., in the insolvent estate of ... 274
Dvckitt, P. M., in re ... ... ... 265
Dumper v. The Dnmper Developing Syn-
dicate ... ... ... ... 358
Duna v. Sabenkola 69,64,70
Duncan v. Tiengo 118,121,124
Dunman v. Trautmann ... ... ... 305
Du Plesais, J. A., in re ... ... ... 232
Du Plessis, J. P., in re ... ... ... 103
Du Plesais, C. S., t» re ... ... ... 147
Du Plesais Executors v. Da Plessis Executors 817
Du Plooy, C. W., in re ... ... ... 142
Du Toit, D. N. J., in re ... ... ... 291
PAGE
Du Toit v. Louw ... ... 290," W9
D.R. Church, Adderley-street v. Registrar of
jjeeo.8 ... ... ... ... fO
Dutch Reformed Church v. The Master &
South African Association ... ... 122
Du Toit, A. J., in re ... ... ... 73
Du Toit, J. J., Petition of... ... ... 163
Du Toit v. Du Toit ... ... ... 188
Dyasson, A., in-re ... ... ... 18
Dyer, P., Petition of ... ... ... 233
Eaton, A. M., Petition of ... ... ... 169
Eaton v. Eaton ... ... ... 197, 232, 266
Eaton, Robins & Co. v. Oliver ... ... 132
Edwards, W. M., in re ... ... ... 64
Elder's Executors v. Willey ... ... 179
Elder's Executors v. Linder ... ... 291
Erasmus, J. L., in re ... ... ... 124
Estate Robertson <& Bain v. du Plessis ... 117
Estherhuysen, D. W., in re ... ... 334
Evans, J. B., in the estate of the late ... Ill
Everitt, H., in the estate of the late ... 186
Executors, Mary Quin, v. Executor, John
Quin ... ... ... 134, 169
Executors of Loynes v. Cochrane ... ... 49
Fairbridge <fc Arderne v. Copeland... ... 2
Findlay & Tait v. Herbst ... ... ... 290
Fisher, C, in re ... ... ... ... 34
Fleischer, T., i n re ... ... ... 19
Fletcher <fe Co. v. Hugo ... ... ... 49
Fletcher & Co. v. Le Sueur ... ... 208
Fon iein, 8. H., in re ... ... ... 291
Forrest v. Ohlsson's Cape Breweries ... 84
Fourie, A. J., Petition of ... ... 20, 64
Francis Bros. v. Schunke ... ... ... 61
Frylinck, J. B. P., in re ... ... ... 103
Gannon v. Gannon ... ... ... 19
Gardner v. Teague A Gray ... ... 826
Gasiep v. Salie and another ... ... «*147
Gassier v. Poppe, Russeuw & Co. ... ... 64
Geduld, M. J., Petition of 262
Geduld v. Geduld ... ... 825, 837
General Estate A Orphan Chamber, Peti-
tion of ... ... ... ... 288
General Estate & Orphan Chamber v.
October ... ... ... ... 303
Gerioke v. Lamprecht ... ... 64, 72
Gericke, J. 8., in re ... ... ... 384
German, W. A. Co., v. Bansen ... ... 303
Geyer, J. J., Petition of ... ... ... 347
Gibbon, E. R. A., Petition of 34
Giddy, in re ... ... ... ... 290
Gill v. Hirsch ... ... ... ... 53
Gill v. De Vries ... ... ... ... 239
Gladstone, G., Petition of ... ... 86,284
Gladstone v. Gladstone ... ... ... 325
Glynn, J W., in the Estate of ... ... 3
Gordon, M., in re ... ... ... ... 12
Gough, E. M., in re ... ... ... 108
Grouws P. A. 8., Jan's son... ... ... 28Q
1 ,
IV
TABLE 0? CASES.
Graaff v. Klerck ... ... ...
Grady, J., in the insolvent estate of
Green v. Beveridge
Groenewald v. Botha
Groenewald's Executrix v. Beneke...
PAGE
... 1, 3
... 229
85,69
... 178
182, 232
Groom <fc White v. The Beohuanaland Ex-
ploration Company ... 40, 46, 110, 128
Groove, C. J., Petition of ... ... ... 18
Gnmpert, B., Petition of ... ... ... 182
• Haak, L. P., in re... ... ... ... 179
Haarhoff, H. C, in re ... ... ... 189
Halkett, J., and wife, in re ... ... 189
Hall, T., in the estate of the late ... 11, 198
Hall <fc Co. v. October ... ... ... 108
Hamilton Ross 6 Co. v. Saundert. ... ... 78
Hamman, A. S M in re ... ... ... 12
Harris v. Behm ... ... ... ... 123
Harris & Co. v. Grodner ... ... ... 102
Harvey, M., Petition of ... ... 324, 346
Hasell'8 Executors v. Herold ... ... 353
Hatch, M. A., Petition of ... ... ... 195
Hatch v. Hatch ... ... ... 199,296
Hayward, C. W. A., in re ... ... ... 79
Heath, H., in the Insolvent Estate of ... 71
Heinemann v. Heinemann... ... 201, 265
Henning, J. C, in re ... ... ... 83
" Hera," in re ... ... ... ... 20
Herp's Trustees v. Brown... ... ... 308
Heydenrych v. Solomon and McLoughlin ... 67
Heydenrych v. Langermann ... ... 67
Hiddingh v. Stookdale ... ... ... 179
Hill <fc Paddon v. Colonial Government 147, 275
Hirsch, in the Insolvent Estate of ... ... 80
Hirst v. Muller, Smith & Co. ... 103, 118
Hitzroth, M. M., in the Insolvent Estate of... 282
Hodges, P. T. R., in re ... ... ... 80
Holliday, H., in the Estate of the late ... 171
Holme, D. H., in re ... ... ... 81
Holtzhausen, A. M., in re ... ... ... 103
Honeyborne, J. A., in re ... ... ... 286
Honeyborne v. Honeyborne ... ... 139
Hoogendoorn, W. T., in re ... 282, 807
Hoole, E. B. C, in re ... ... ... 189
Hopkins, M. A., in the estate of ... ... 98
Hopkins v. Hopkins ... ... ... Ill
Horsfall, M. M., in re ... ... ... 24
Houston, D. D., in re ... ... 86, 77
Hughes, I. P., in re ... ... ... 103
Hugo, P. J., in the estate of ... 283, 837
Hulbert v. Capern A Marriott ... ... 60
Human, P. L., in re ... ... ... 280
Humphries v. Speneer ... ... ... 170
HyaiD8, S., in re ... ... ... ... 83
Hyland v. Brown ... ... ... 72
Hyland, E. C. W. f Petition of ... 30, 31
Impey, Walton & Co. v. Perkins ... 68, 82
Imroth v. Ward ... ... ... ... 200
Imroth v. The Liquidators Cape of Good
Hope Bank ... ... ... ... 228
PAGE
Innes, G., in re ... ... ... 280
Jackson, T. C, Petition of ... ... 277
Jackson v. Cutting ... ... 84, 49, 178
Jacobs v. East ... ... ... ... 868
Jamieson, John, in the Estate of ... ... 73
Jansen v. Conradie ... ... ... 226
Jassiem and Others v. The Master and
Steytler ... ... ... 186, 196, 212
Jay, J., in re ... ... ... ... 19
Johnson v. Vade ... ... ... ... 290
Jones v. Cauvin & Co. ... ... ... 168
Jooste v. Kok ... ... ... ... 251
Jordaan, S. A., in re ... ... ... 179
Joubert, P. P., Petition of ... 170, 190
Joubert, W. A., D.son, in re ... ... 198
Joubert v. Thompson ... ... ... 860
Jukkie, I., in the estate of the late 225, 266
Kaffrarian Colonial Bank v. Schunke ... 824
Kannemeyer, D. V., in re ... ... ... 274
Kaufmann & Paterson v. Atkinson ... 19
Kemp, W. J. H., in re ... ... ... 280
Kemper, E., in re... ... ... ... 64
Kidwell, A. B., in re ... ... ... 183
Kincaid v. Nixon's Executors ... ... 242
King Bros. v. Wahl ... ... ... 804
Kleyn, M. G. S., in the Insolvent Estate of... 170
Klerck, H. J. W., in the Insolvent Estate of 286
Klinck v. Klinck ... ... ... ... 868
Knoop, J. N., in re ... ... 199, 204
Knox, D., Petition of ... ... ... 169
Knox v. Knox ... ... ... ... 801
Knysna, C. G. M. Co. (Limited), in re ... 184
Knysna Divisional Council v. Kannemeyer's
Executors ... ... ... ... 179
Kohne, C. H., Petition of ... ... ... 336
Koller v. Abas ... ... ... ... 200
Kotzee v. Kotzee ... ... .«. 31
Kretschmar, E. t Petition of ... ... 276
Kretzinger, J. W. and J. M n in the Insolvent
Estates of ... ... ... ... 277
Kruger, J. C, in re ... ... ... 291
Knimmeck, J. J., in re ... ... ... 19
Kuhn, H. J., in re ... ... ... 864
Kutln v. Schalkwyk ... ... ... 65
Kutin v. The Attorney-General ... ... 866
Kuys and Another v. Badenhorst ... ... 179
Kyffin, A. R., in re ... ... ... 84
Lamb, J., in re ... ... ... ... 120
Lamb, J. H., in re the application of ... 186
Lamb, J. M., in the estate of ... ... 809
Lane v. Sorenssen, in re u Saga " ... ... 26
Langford, A., in re ... ... ... 179
Langford v. Marais ... ... ... 266
Lanbsoher, J. A., in the Estate of the late ... 1
Laubser, C. A., in re ... ... ... 884
Lawley v. The Cape Town Council ... 302
Lawrence & Co. v. Russouw Bros. ... ... 280
Lawrence & Others v. Ward A Weasels 184, 179
Lawrence & Others v.- Ward & Weasels, in re 214
Table of cases.
PAGE
Lawrence & Sons, in re ... ... ... 103
Leasing, L. S., in re ... ... ... 204
Lee, C. W„ Petition of 281, 307
Lee, W., Petition of ... ... ... 182
Leibenberg, C. R., in re ... ... ... 2
Le Ronx, in the Insolvent Estate of ... 276
Le Ronx, C. M M Petition of ... ... 276
Lesar, 8. B., Petition of ... ... ... 282
Levatte, J., Petition of ... ... ... 69
Levatte v. Levatte ... ... 76,119
Levin v. Garlick ... ... ... ... 26
Lewis & Co. v. Schmidt ... ... ... 834
Liebenberg v. Westhuysen ... ... 102
Liebenberg v. van der Westhuysen ... 166
Liiford, C, in re ... ... ... ... 291
Lind v. Van der Veen ... ... ... 112
Lippert, M. E., Petition of 263
Lkchtly v. Strangmann ... ... ... 168
Lithman & Co. v. Morris ... ... ... 2
Loan 6 Mortgage Agency v. Bruhns ... 198
Loedolff, C, in re.., ... ... ... 120
Logan v. Carter ... ... ... 212, 279
London and South African Exploration Com-
pany v. Cathypadyachy ... ... 186
London and S.A. Exploration Co. v. Ronliot 4
Lopes ▼. Lopes ... ... ... ... 8
Letter, M. C, tn re ... ... ... 2
Lotter v. Ndhlangalava ... ... ... 197
Lonbser, M. P., Petition of ... ... 190
Lonw v. Groenewald ... ... ... 212
Lonw, 8. P., in re ... ... ... 2
Lonw v. Theron ... ... ... 29, 81
Loyden, M. A., Petition of ... ... 76
Land v. Lonw ... ... ... ... 863
Ltucombe's Trnst Fund, in re ... 72
Lyons A Sons v. Caissao ... ... ... 366
MacKenzie, M. E., in re ... ... ... 169
Maekie, Dnnn 6 Co. v. The Potohefstroom
Exchange Co. ... ... . . 66
Malan, D. J., Petition of 276, 276
Malcolm v. Pringle ... ... ... 3
Mall, T. E., in re ... ... ... ... 19
Mantle, M., Petition of ... ... ... 173
Mantle v. Mantle... ... ... ... 291
Mantis, P. J., tn re ... ... ... 64
Marais, P., in re ... ... ... ... 280
Marais, P. S. S., tn re ... ... ... 179
Marais, I. S. J., tn re ... ... ... 147
Marais v. Baartman ... ... ... 212
Marais v. Laugford ... ... ... 234
Marais ▼. Bensbnrg ... ... ... 10
Mark, B., Petition of 347,866
Martin, W. W„ in the Estate of ... 11, 79
Maritz, P. J., in re ... ... ... 103
Maritz v Delport ... ... ... ... 203
Maroney, M.. in the estate of the late 166, 178
Masters, J. S., in the estate of the late 76, 182
Master Supreme Court, in re the petition of 142
Master Supreme Court v. Buxman... ... 146
PAGE
Mathew v. Pentz ... ... ... ... 40
Matthews, S. B., Petition of ... 281, 288
McEwan, B., Petition of ... ... 284, 337
McGregor's Trustees v. Silberbauer ... 837
McKay v. De Beers Mining Company ... 317
MoKenzie, tn re ... ... ... ... 290
McLacblan Bros. v. Du Toit ... ... 279
McLeod, A. J., Petition of ... ... 274
McLeod, J. H., in re ... ... ... 212
McLeroth, tn re ... ... ... 73, 78
McNamara, in the estate of the late ... 364
McNaughton's Assignees v. Louw ... ... 124
Meder, H. S., in re ... ... ... 189
Mego, C. W., tn re ... ... ... 228
Meiring, A. M., Petition of ... ... 84
Meiring v. Grundling's Executor ... ... 269
MelliBh v. Floris ... ... ... ... 146
Meyer, N. S., Petition of ... ... ... 213
Meyer t. Reisberg ... ... ... • 76
Michau, A., in the estate of the late ... 182
Miller, J. H., tn re ... ... ... 198
Miller, J., in the Estate ef ... ... 84
Miller v. The Richmond Licensing Court 124, 146
Mills y. Maree ... ... ... ... 263
Mills v. Reyneke... ... ... ... 263
Moller v. Askew ... ... ... 2,11
Moller, H. P., in re ... ... ... 28t
Molteno's Executors v. Elliott ... ... 82
Momsen, J. A. L., in re ... ... ... 103
Moolman, W. H., in re the minor ... ... 226
Moore, J., Petition of ... ... ... 286
Morgan & Coltman v. The Executors ef Grewer 8
Morkel, W. A., tn re ... ... ... 280
Morkel, W. V., tn re ... ... ... 87
Moroney, in re the minors... ... ... 286
Morrison, in re the Insolvent Estate of ... 286
Mortimer k Co. v. Herbst... ... ... 286
Morton v. Morton ... ... ... 67
Mess, I., Petition of ... ... 291, 802
Mostern, S. J., in re ... ... ... 18
Mostert, P. J. C, tn re ... ... .,.. 83
Mostert v. The Registrar of Deeds... ... 19
Mudie, M., Petition ... ... ... 347
Muller, A. A., tn re ... ... ... 179
Midler's Executors v. The Argus Company
(Limited) ... ... ... ... 206
Mulvihal, T., Petition of ... ... ... 138
Murray, F. C, tw re ... ... ... 824
Mutual Society v. Claremont Hall Trustees 82
Muzlak v. Cole ... ... ... ... 366
Myburg & Co.'s Assignees v. The Executor of
J. F. du Toit... ... ... ... 64
Myburgh, R. H., tn re ... ... ... 179
My burgh's Assignees v. Klerck ... ... 108
Myekulu v. Simkins ... ... ... 116
Nathansohn v. Con^die A Lambert ... 179
Naude, F. J. & Wife, Petition of 282
Nel, A. J. W. P., in re ... ... ... 34
Nel, G. F., tn re ... ... ... ... 19
VI
TABLE OF CASES.
PAGE
Nel and others v. Nel's Executrix ... ... 125
Nel A Tiran v. Lind A Tiran 204, 214, 257, 262
Nelson, M. L., in re ... ... ... 8
Nelson, O. 8., Petition of ... ... ... 347
Nesbitt, P. S., Petition of . . . 275
Nesbitt v. Nesbitt 280,307
Nezar, G. A. T., in re ... ... ... 83
Niehaus v. Niehaus ... ... ... 138
Noble v. Frisby ... ... ... ... 290
Norval, J. J., in re ... ... ... 83
Nowitz, B. I., in re ... ... ... 120
Oates, M. A., Petition of ... ... ... 97
Oates, P. J., in the Insolvent Estate of ... 40
Oates y. Trustee Insolvent Estate of Oates 99
Odendaal, P. G., in re ... ... ... 280
Odendaal, W. S. N., Petition of ... 347, 355
Odendaal v. Matthee ... ... ... 179
Ohlsson & Co. v. Day ... ... ... 19
Ohlsson A Go. v. Tiedman's Executrix ... 280
Ohlsson's Cape Breweries v. Whitehead ... 344
Oliver, R., in the Insolvent Estate of ... 134
Oliver, D. H., and others, Petition of ... 86
Oliver v. Oliver and Peckover ... ... 51
Olivier, H. H., Petition of 30
Olivier, G. C. and deceased spouse in the
estate of ... ... ... ... 309
Omaruru, G. M. Co. (in liquidation), in re ... 119
Omaruru G. M. A Exploration Co. v. Hinoh 64
Oppenheim, H., in the estate of the late ... 184
Oudtshoorn Divisional Council v. Rauben-
heimer ... ... ... ... 253
Overbeek, H. M., in the estate of the
late ... ... ... ... 124, 233, 266
Paarl Bank (in liquidation) ... 12, 81, 85
Paarl Bank (in liquidation), in re 215, 292, 307, 334
Paarl Bank, (in liquidation), First Report ... 12
Paarl Bank (in liquidation) v. Executrix of
Roux ... ... ... ... 136
Paarl Bank (in liquidation) v. Hugo A others 71
Paarl Bank (in liquidation) v. Le Roux ... 188
Paarl Bank (in liquidation) v. Wicht ... 183
Paarl Bank (in liquidation) v. Clemen ... 290
Paarl Fire Assurance Co v. Gildenhuys ... 82
Paarl Municipality v. Blignaut ... ... 77
Parker v. Hopkins ... ... 40, 49, 76
Partridge v. Partridge 179, 212, 228, 232, 286, 354
Pattison, W., in the estate of the late ... 324
Pelser v. Van der Linde ... ... ... 364
Peters v. Peters ... 20, 30, 67, 78, 190, 212, 232
Peters v. Skead, Cowling & Co. ... ... 210
Phillips v. Phillips 23, 111, 190
Phillips, S., in the Estate of ... ... 85
Pienaar, B. J., in the estate of the late ... 183
Pienaar's Executors, Petition of ... ... 142
Pietv. Piet ... ... ... 113,190
Pilgram, B., in the Insolvent Estate of ... 287
Port Elizabeth Town Council, Petition of 147, 233
Pote, Charles, in the Estate of the late ... 101
Potgieter's Executor v. Potgieter ... ... 235
PAGE
Preiss v. Gluckman ... ... 17,116
Pretorius, J. J., jun , tn re... ... ... 334
Pretorius, W., in the Estate of ... 34, 809
Prince v. Prince ... ... ... 324, 386, 854
Prince, Vintcent A Co. v. Lizamore ... 124
Protecteur Fire Assuranoe Company (in
liquidation) v. Du Pre ... ... 179
Quin, J., in the Estate of ... ... ... 21
Quin's Executor v. Quin ... ... ... 332
Rawbone v. Muller, Smidt A Co. ... ... 280
Rayner A Co. v. Clements... ... ... 279
Reed, J. G., in re... ... ... ... 324
Reinhard, B., Petition of ... ... ... 347
Regina v. Adelburg ... ... ... 191
Regina v. Arendse ... ... ... 97
Regina v. Arends ... ... ... 114
Regina v. Blumenthal ... ... ... 268
Regina v. Booysen ... ... ... 263
Regina v. Briel ... ... ... ... 31
Regina v. Christian Carolus ... ... 291
Regina v. Cobus Jantjeb ... ... ... 379
Regina v. David Petewe ... ... ... 282
Regina v. Fillis ... ... ... ... 79
Regina v. Fredericks A Mnhler ... ... 126
Regina v. Giliome, Sen. ... ... ... 166
Regina v. Guysman ... ... ... 79
Regina v. Haberkorn ... ... ... 102
Regina v. Kiviet Manel ... ... ... 33
Regina v. Leoman ... ... ... 281
Regina v. Logan ... ... ... ... 119
Regina v. Loontjes ... ... ... 71
Regina v. Lucas A Watkins ... ... 282
Regina v. Maseri A Ramsitsani ... ... 113
Regina v. Meiring ... ... ... 225
Regina v. Moses Fredericks ... ... 281
Regina v. Plessis... ... ... ... 102
Regina v. Plessis A Finnes ... ... 130
Regina v. Prince ... ... ... 183, 191
Regina v. Putshu A Klekiso ... ... 201
Regina v. Rhenoster ... ... ... 209
Regina v. Russouw ... ... ... 113
Regina v. Seale ... ... ... ... 275
Regina v. Stephanas ... ... ... 275
Regina v. Stodard ... ... ... 326
Regina v. Swartlandzana ... ... ... 231
Regina v. Viseer ... ... ... ... 860
Rensberg v. Prins and others ... ... 188
Rensburg, M. C. J., Petition of ... 120, 166
Rentzke, P. M., in re ... ... ... 179
Resid v. Abader ... ... ... 327, 836
Richards, M. A., Petition of ... 64. 146
Richards v. Richards ... ... 897, 811
Riddell v. Riddell ... 84
Rigal v. Grodner ... ... ... ... 102
Rodolf v. Van der Merwe... ... ... 214
Robertson A Bain, in the Insolvent Estate of 29
Robertson v. Robertson ... ... 46, 64
Ross, J. W., Petition of ... ... ... 230
Ross, G. B., in the Estate of ... ... 40
TABLE OF CASES.
*•
Vll
Rom 4 Go. v. Perle
Bow 4 Co. v. Ba&rtman ..,
Ross r. Scott 4 Armstrong
Rotssouw, J. J., in re ..,
Roth well v. Roth well
Roux, D., in re
Roax, E. C. H., in re
Roux, J. L., in re...
PAGE
. 146
,. 280
. 266
.. 24
,. 133
,. 147
,. 64
,. 179
.. 49
Roax, J. A. 4 Co., in the insolvent estate of 281
Rudd, E. A., in re ... ... ... 103
Rodman, m re the minors... ... ... 281
Russouw, J. H., in re ... ... ... 2
Rossouw, R. E., Petition of ... ... 2
Rnifloaw Minors, in re ... ... ... 80
Rossouw v. Ressouw ... ... 59, 111
S&modien, in the Estate of the late 124, 166
Sampson, T., petition of ... ... ... 184
Savings Bank v. Beaumann ... ... 185
Savings Bank v. De Beer... ... 156, 185
Havings Bank v. De Waal... ... ... 19
Hcallan's Executors v. Voortman ... ... 20
Scanlen's Assignment, in re ... ... 347
Scarbrow v. Reynecke ... ... ... 280
Scheepers, J. J., in re ... ... 63, 134
Schoeman, L. J., in the Insolvent Estate of 113
Schoeman, S. P. A., Petition of ... ... 281
Sehrink, E., in re ... ... ... 2
Scott, J., in re ... ... ... ... 280
Scott v. Bevern ... ... ... ... 179
Scott Brothers v. Hirsch ... ... ... 19
Scott Bros. v. Sytner ... ... ... 350
Searight v. Robertson ... ... ... 83
Searle 4 Co. v. Stander ... ... 287,334
Seavill 4 Colley ... ... ... ... 320
Sellar Brothers v. Cranna... ... ... 103
Shah of Persia Syndicate (in liquid.) v. Froud 198
Shah of Persia Syndicate (in liquid.) v. Smart 198
Shakofsco v. Van Noorden ... 101, 121, 235
fcihawe v. Honey borne ... ... ... 295
Sichel v. Kannemeyer ... ... ... 146
Sluiter v. Malan ... ... ... ... 118
Smailes, P., Petition of ... ... ... 84
Small v. Frames ... ... ... ... 147
Smart, Charles W., in re ... ... ... 266
Smith, B. J., in re ... ... ... 291
Smith, H. G. S., in re ... ... ... 324
omitb, «)•, tfi re ... ... ... ... 29
Smith 4 Carter v. Van Staden ex parte Van
Staden ... ... ... ... 325
8mith v. Croeser ... ... ... ... 290
Smith v. Gluckman ... ... ... 83
Smith v. Lategan... ... ... ... 188
Say man v. Snyman's Executor ... ... 280
Solomon v. Woolf 224, 263
Sonnenberg, H. J., in re ... ... ... 276
8.A. Association v. Elliot ... ... ... 19
S.A. Association v. Leary ... ... 353
South African Assurance Society v. Hartingh 1 18
PAGE
South African Assurance Society v. Muller... 118
South African L. 4 M. Agency, Petition of 159
South African L. 4 M. Agency v. Baird ... 179
South African L. 4 M. Agency v. Bruhns ... 188
South African Mutual v. Muller ... ... 279
South African M. L. A. Association v. Du
xr lessis ... ... ... ... w"
Spangerberg, C. H., in re the minor ... 358
Standard Bank, Petition of ... ... 85
Standard Bank v. Jooste ... ... ... 146
Standard Bank v. Olivier ... ... ... 279
Standard Bank v. Poppe, Russouw 4 Co. ... 72
Standard Bank v. Robertson 4 Bain 19, 29, 2i2
Standard Bank v. Wylie ... ... ... 268
Staples v. Swansfelder ... ... ... 140
Steer, F. B., in re... ... ... ... 280
Steffeok, G., in re... ... ... ... 34
Stegmann v. Cohen ... ... 82, 102, 149
Stephan v. Lipsett 4 wife... ... ... 133
Stephan Bros., Petition of ... ... 190
Stewart, W. K., in re ... ... ... 280
Stewart, A., in re... ... ... ... 291
Stewart v. Kingon ... ... 101, 191
Steynsburg Steam Mill Co., in re ... ... 166
Steytler v. Cohen... ... ... ... 118
Stigling, A., in re... ... ... ... 280
Steytler v. Hudson ... ... ... 276
Stotfels, Philida, Petition of 121
Struben v. The CapeDist. Waterw.Comp. 171, 838
Sturk 4 Co. v. Moodie ... ... ... 228
Sturrook v. Birt ... ... ... 20, 315
Tadman, M. A. L., Petition of ... ... 347
Taylor v. Symonds 4 Schunke ... 3, 14, 83, 336
Teengs v. Garlick... ... ... 34, 132
Teengs v. Garlick, in re ... ... ... 156
Theuni*sen, C, Petition of ... ... 284
Theunissen, D. J., in re the application of ... 338
Theuniasen, M. W., in re ... ... ... 73
Thomas, A., Petition of ... ... ... 846
Thomas v. Boose ... ... ... ... 2
Thompson, A., in re ... ... ... 147
Thorne 4 Stuttaford v. McNally ... ... 48
Tilney, L., in re ... ... ... ... 2
Tindall, A. G. H., in the estate of the late .,. 234
Tindall, W. A., in re ... ... ... 49
Tiran, J. P., in the Estate of the late ... 98
Topp v. Topp ... ... ... 103, 214
Trustee, Zulu Bishopric Fund v. Kruger ... 63
Trustees Van Wyk's Estate v. De Jager 4
Others ... ... ... 179,183
Truter, C. J. M., Petition of ... 142, 156, 183
Truter v. Truter ... ... ... 232, 234 302
Union Bank (in liquidation), in re... 3, 30, 64, 101
Union Bank (in liquidation), v. Beit ... 367
Union Bank (in liquidation), v. Brentnall ... 76
Union Bank (in liquidation) v. Clark ... 188
Union Bank (in liquidation) v. Hofmeyr's
Executrix ... ... ... 64, 278
Union Bank (in liquidation) v. Ruprouw ... 212
• ••
Till
TABLE OP CASES.
PAGE
Union Bank (in liquidation), in re Sir T.
Scan 1 en's compromise... ... ... 122
Union Bank (in liquidation) v. Shackell ... 142
Union Bank (in liquidation) v. Thompson ... 72
Union Bank (in liquidation) v. Uys 118, 119, 846
Union Bank (in liquidation) v. Watson's
Heirs & Executors ... 40, 72, 104, 106, 269
Union Bank (in liquidation) v. Watson's
Heirs, in re ... ... ... ... 274
Uys v. Baartman... ... ... ... 118
Uys, N. P., Petition of ... ... 1 82, 189
Van Antwerp, J. L., in re... ... ... 334
Van Blerk, M. M., Petition of ... ... 824
Van der Byl 6 Co. v. Rode ... ... 178
Van der Byl & Co. v. Zuidmeer ... ... 232
Van der Merw*, I. J. H., in re ... ..* 280
Van der Merwe, W. J., tn re ... ... 147
Van der Merwe, W. S., in re ... ... 19
Van der Westhuysen, J., in re ... ... 49
Van der Westhuysen, D. P., Petition of ... 281
Van Eeden, H. J., in re ... ... ... 19
Van Heerden, A. P., in re... ... . v 2
Van Heerden, J. L., in the Estate of the late 171
Van Heerden, J., in the estate of the late 199, 212
Van Heerden, L. C., Petition of ... ... 170
Van Heerden, tn re the minors ... ... 286
Van Heerden v. the Victoria Wst. Municipy. 69, 70
Van Niekerk, A. P. B., in re ... ... 64
Van Niekerk, J. L., in re ... ... ... 19
Van Niekerk, H., Petition of ... ... 325
Van Reenen, D. G. (deceased), and {surviving
spouse, in re ... ... ... ... 280
Van Reenen, S.V., in the insolvent estate of 285, 309
Van Renen's Trustee v. Abel .-.. ... 329
Van Renen's Trustees v. Versfeld and others 346
Van Rensburg, M. C. J., Petition of 120, 156
Van Rensburg, P. J. J., in re ... ... 334
Van Rhyn v. Van Zyl ... ... ... 311
Van Wyk, J. A B., in re ... ... ... 142
Van Zyl, in the Insolvent Estate of ... 81
Van Zyl, C. J. A., in re ... ... ... 346
Van Zyl, G. J., in re ... ... ... 265
Van Zyl, tn re the minora ... ... ... 284
Van Zyl, W. J., in the estate of the lato ... 266
Van Zyl and Others v. DeBfer's Executrix 59, 75,
78, 196j 280
Van Zyl, J. B., in the Estate of the late ... 81
Van Zyl, P. J., Petition of ... 80, 103
Van Zyl, P. P. J., in re ... ... ... 124
Van Zyl v. Schwartz ... ... ... 72
Venter, C, Petition of ... ... ... . 81
Victoria W. C. Factory, in re ... ... 250
Viljoen, C,in the Insolvent Estate of 18, 59, 164,213
Villa v. Villa ... ... ... ... Ill
Viuk's Executors v. Uys ... ... ... 124
Vintcent. L. A., Petition of ... ... 347
Visagie, in re the minors ... ... ... 284
Vogelgezang, M. L., in re ... ... ... 120
Vogl, J., in re ... ... .„ ... 78
PAGE
Von Below v. Tiengo ... ... 118, 121, 124
Walker v. Cape Central Railways (in liqui-
dation) ... ... ... 57 86
Walker v. The Cape Central Railways (in
liquidation), in re ... ... ... 162
Walker v. Dickson ... ... 198, 263
Wallace, C. W., tn re ... ... ... 29
WalmerVillage Managem. Board, inre 376, 283, 285
Walsh, A. H., in the estate of ... ... 188
Ward, C. G., in re ... ... ... 2
Ward v. Gerald & Co 197, 214, 228
Warner v. Tomkin ... ... ... 188
Warren v. Clements ... ... ... 287
Watson's v. Burchell's Executors ... ... 296
Watson's Executors v. Broderick ... ... 123
Watson's Executors v. Watson ... ... 159
Watson's Executors v. Watson's Heirs ... 244
Webster v. Solomon ... 39,63
Weeber, W. D., in re ... ... ... 228
Wellington Bank (in liquidation), in re 81, 181
Wessels v. Basson ... ... ... 63
Wessel's Executors & Bisset v. The Master
High Court ... ... ... ... 311
Western Province Bank v. Malherbe ... 2, 29
Western Province Bank v. Roberts ... 353
Westhuysen v. Heyns and others ... ... 85
Wheeler, Petition of ... ... ... 113
Wheeler v. Wheeler 122, 146, 232
White, J. G., tn re ... ... ... 108
White, Muller & Co. v. Cohen ... ... 83
Whitehead, W. C, tn re ... ... ... 2
White House M. <b D. Syndicate, tn re ... 21
Wicht, J. J., in re ... ... ... 275
Wicht v. Rutherfoord ... ... ... 72
Widdowson, M. J., Petition of ... 199, 266, 281
Wilhelm, G., tn re ... ... ... 291
Wilke, in the Estate of the late ... ... 98
Willey, G. J., in re ... ... ... 280
Williams, W., in re ... ... ... 354
Williams v. Samuels ... ... 83, 178
Williams v. Snooke ... ... ... 170
Wilson v. Hall & Wessels ... ... ... 107
Wilson v. Shaw ... ... ... ... 299
Wilson v. Wilson & Minnaar 8, 51, 69, 101, 146, 147
Witkop Syndicate v. Kleinschmidt ... 884
Wolstenholme, J., in the Insolvent Estate of 846
Woodcock, C, Petition of... ... ... 809
Woodman, C, Petition of ... ... ... 169
Woodman v. Robinson ... 178, 182, 214, 263
Worcester M unicipality v. The Colonial Go vt. 1 26
Wright, J., Dr., in the estate of the late ... 1
Wright v. The Colonial Government 146, 216
Wright A Drennan, in re the ante-nuptial
contract of ... ... ... ... 178
Wright v. Williams ... ... 38,67,99
Zahn v. Du Preez ... ... ... 114
Zeederberg & Duncan v. Hall ... ... 82
Zeeman, R. J., Petition of ... ... 836
Zoutspansberg Palmietf ontexn Estate Co , tn re 111
TABLE OF CASES.
PAGE
Ackermann, J. H. B., in the Insolvent
Estate of . ... ... ... ... .69
Adshade, Petition of ... ... 20,46
Alexander, A-, in re ... ... ... 2
AHwright, E., in re ... ... ... 19
Amsterdam, C, in re ... ... ... 19
Arendse, J., in re ... ••• ... ••• 2
Askew v. Holler ... ... ... ... 24
Atkinson, v. The Registrar of Deeds ... 17
Annn, K H., in the Insolvent Estate of ... 85
Bevern*s Executors v. Ely ... ... ... 82
Bisset, W. Iff., in re ... ... ... 11
Bloam, B., in re ... ... ... ... 68
Board of Executors v. Bonx ... ... 19
Bolus, Harry, Petition of ... ... ,..80
Boose, v. Woodhead and others ... 61, 68
Botha, J. A., in re ... ... ... ... 64
Botma r. Botma ... ... ... ... 72
Brink, H., in re ... ... ... ... 49
Burger, B. J. J., Petition of ... ... 19
Gabrita, J. A., in re ... ... ... 73
Campaan v. Campaan ... ... 20, 67
Cape Central Railways v. Walker ... ... 78
Cape of Good Hope Bank (in liquidation) v.
v oweii ... ... ... ... t»
Gape of Good Hope Bank (in liquidation) v.
xi e a m ... ... ... ... £v
Cape of Good Hope Bask (in liquida-
dation 2,12,18,50,57
Gape of Good Hope Bank (in liquidation) v.
Estate of Van Lier ... ... 18, 78
Cape of Good Hope Bank (in liquidation) in
re Searle, F. A. ... ... ... 18
Cape of Good Hope Bank (in liquidation),
Second Report ... ... ... 21
Cape of Good Hope Bank (in liquidation) v.
Robertson ... ... ... ... 84
Cape of Good Hope Bank (in liquidation) v.
tioex ... ... ... ... ... tt»/
Gape of Good Hope Bank (in liquidation) v.
S.A. Association ... ... ... 78
Cape of Good Hope Bank (in liquidation) v.
East, Rnnciman and others ... 73, 75
Gape of Good Hope Bonk (in liquidation) in
re Coroners Contract ... ... ... 50
Cape-Transvaal G. M. Association (in liqui-
jf^*** flatioii) •■• ••• ••■ ••• 8
PAGB
Clack and Others vs. The R.M. of Graaff-
Reinet ... ... ... ... 78
Claridge v, Kellaway ... ... 47, 51
Cleghorn & Harris v. Hirsch .... ... 19
Colonial Government v. Morgenrood ... 34
Colonial Orphan Chambers v. Marnitz 50, 75
Crozier vs. Crozier... ... ... ... 78
Cunningham, M., Petition of ... ... 76
Dalton v. Quine ... ... ... 35, 50
Damaraland M. and Exploration Co. (in
liquidation) ... ... ... ... 78
D'Arc v. Benson & MoDermott 19, 54, 77
Darter v. Greatbaok ... ... ... 72
Day, R., in the Insolvent Estate of ... ... 21
De Klerk v. De Klerk 29,58
Dessauer v. Dessauer ... ... ... 23
De Waal <fc Co., in the Insolvent Estate of ... 54
Duna v. Sabenkola ... ... 59,64,70
D.R. Church, Adderley-street v. Registrar of
Deeds ... ... ••• ••• 75
Du Toit, A. J., in re ... ... ... 78
Dyasson, A., in re ... ... ... ... 18
Edwards, W. M., in re ... ... ... 64
Eeden, van, H. J., in re ... ... ... 19
Executors of Loynes v. Cochrane ... ... 49
F airbridge & Arderne v. Copeland ... ... 2
Fisher, C, in re ... ... ... ... 34
Fleischer, T., in re... ... ... ... 19
Fletcher v. Hugo ... ... ... ... 49
Fourie, A. J., Petition of ... ... 20, 64
Francis Bros. v. Sohunke ... ... ... 51
Gannon v. Gannon ... ... ... 19
Gassier v. Poppe, Russouw & Co. ... ... 64
Gerioke v. Lamprecht ... ... 64, 72
Gibbon, E. R. A., Petition of ... ... 34
Gill v. Hirsch ... ... ... ... 53
Glynn, J. W., in the Estate of ... ... 3
Gordon, M., in re ... ... ... ... 19
Graaff v. Klerck ... ... ... ... 1, 8
Green v. Beveridge ... ... 85, 69
Groom and White v. The Bechuanaland Ex-
ploring Co. ... ... ... 40, 46
Groove, C. J ., Petition of ... ... ... 18
Hall, T., in the Estate of ... ... ... 11
Hamilton Ross & Co. v. Saunders ... ... 78
Hamman, A. S., in re ... ... ... 12
Hayward, C. W. A., in re ... ... ... 79
11
TABLE 0? CASES.
PAGE
Heath, H., in the Insolvent Estate of ... 71
Heerden, van, A. P., in re ... ... ... 2
Heerden, van v. Victoria West Municipality, 59, 70
4C Hera," tn re ... ... ... ... 20
Heydenrych v. Salomon and MoLoughlin ... 67
Heydenryeh y. Langernunn ... ... 67
Hirsch, in the Insolvent Estate of ... ... 80
Hodges, P. T. R., in re ... ... ... 80
Horsfall, M. M., tn re ... ... ... 24
Houston, D. D., in re ... ... 35, 77
Hnlbert v. Capern & Marriott ... ... 60
Hyland v. Brown ... ... ... ... 72
Hyland. E. C. W., Petition of ... 30, 31
Impey, Walton 6 Go. v. Perkins ... ... 58
Jackson v. Catting... ... ... 34,49
Jaxnieson, John, in the Estate of ... ... 78
Jay, J., tn re ... ... ... ... 19
Kaufmann 6 Paterson v. Atkinson ... ... 19
Kemper, E., tn re ... ... ... ... 64
ELotzee v. Kotzee ... ... ... ... 81
ELrummeck, J. J., tn re ... ... ... 19
KttUn v. Sohalkwyk ... ... ... 55
Kyffin, A. B«, tn re ... ... ... 84
Lane v. Sorenssen, in re " Saga " ... ... 26
Lanbsoher, J. A., in the Estate of the late ... 1
Leibenberg, C. R., in re ... ... ... 2
Levatte, J., Petition of ... ... ... 59
Levatte v. Levatte and Henderson ... ... 76
Levin v. Garliok ... ... ... ... 25
Lithman & Co. v. Morris ... ... ... 2
London and S.A. Exploration Co. v. Rouliot 4
Lopes v. Lopes ... ... ... ... 3
Lotter, M. C, tn re ... ... ... 2
Louw, S. P., tn re ... ... ... ... 2
Louw & Co. v. Theron ... ... ... 29
Loyden, M. A., Petition of ... ... ... 76
Luscombe's Trust Fund, in re ... ... 72
Mackie, Dunn & Co. v. The Potohefstroom
Exchange Co. ... ... ... ... 56
Malcolm v. Pringle ... ... ... 8
Mall, T. E., in re ... ... ... ... 19
Marais v. Rensburg ... ... ... 10
Marais, P. J., tn re ... ... ... 64
Martin, W. W., in the Estate of ... 11, 79
Masters, J. S., in the Estate of ... ... 76
Mathew v. Pentz ... ... ... ... 40
McLeroth, tn re... ... ... 73, 78
Meiring, A. M., Petition of... ... ... 34
Merwe, van der, W. S., in re ... ... 19
Meyer v. Reisberg ... ... ... 76
Miller, J., in the Estate ef ... ... ... 34
Moller v. Askew ... ... ... 2, 11
Morgan & Coltman v. The Executors ef Grewer 8
Morton v. Morton ... ... ... ... 67
Mostern, S. J., tn re ... ... ... 18
Mostert v. The Registrar of Deeds ... ... 19
Myburg A Co.'s Assignees v. The Executor of
J. F. du Toit ... ... ... ... 64
Nelj G. F.j tn re .,. .,. ... ... 19
Nel, A. J. W. P., in re
Nelson, M. L., tn re
Niekerk, van, J. L., tn re ...
Niekerk, van, A. P. B., tn re
Oates, P. J., in the Insolvent Estate of
Ohlsson 6 Co. v. Day
Olivier, H. H., Petition of ...
Oliver v. Oliver and Peckover
ii
••t
PAGE
... 84
... 8
... 19
... 64
... 40
... 19
... 80
... 51
Omaruru G. M. <b Exploration Co. v. Hirsch 64
Paarl Bank (in liquidation) ... 12, 81, 85
„ „ „ First Report ... 12
„ „ „ v. Hugo and others 71
„ Municipality v. Blignaut - ... ... 77
Parker v. Hopkins... ... 40, 49, 76
Peters v. Peters... ... ... 20, 3&, 67, 78
Phillips v.Phillips... ... ... ... 23
Phillips, S M in the Estate of 35
Preiss v. Gluokman ... ... ... 57
Pretorius, W., in the Estate of ... ... 84
Quin, J., in the Estate of ... ... ... 21
Regina v. Briel ... ... ... ... 23
v. Kiviet Manel ... ... ... 88
v. Loontjes ... ... ... 71
v. Fillis ... ... ... ... 79
v. Guysman ... ... ... 79
Richards, M. A., Petition of ... ... 64
Robertson 6 Bain, in the Insolvent Estate of 29
Robertson v. Robertson ... ... 46, 54
Ross v. Scott & Armstrong... ... ... 24
Ross, G. E., in the Estate of ... ... 40
Rossouw v. Ressouw ... ... ... 59
Russouw, R. E., Petition of ... ... 2
Russouw, J. H., tn re ... ... ... 2
Russouw Minors, in re ... ... ... 80
Roux, J. L., tn re ... ... ... ... 49
Ronx, D., tn re ... ... ... ... 64
Savings Bank v. De Wall ... ... ... 19
Scallan's Executors v. Voortman ... ... 20
Soheepers, J. J., tn re ... ... ... 63
Sohrink, E., tn re ... ... ... ... 2
Scott Brothers v. Hirsch ... ... ... 19
Smith, J., tn re ... ... ... ... 29
S.A. Association v. Elliot ... ... ... 19
Standard Bank v. Robertson 4 Bain 19, 29
Standard Bank v. Poppe, Russouw & Co. ... 72
Bttffeok, G., tn re ... ... ... ... 34
Sturrock v. Birt ... ... ... ... 20
Swardt, de, S. J. H., tn re ... ... ... 2
Taylor & Symonds v. Sohunke ... 3, 14
Teengs v. Garlick ... ... ... ... 84
Theunissen, M. W., tn re ... ... ... 78
Thomas v. Boose ... ... ... ... 2
Thome & Stuttaford v. McNally ... ... 48
Tilney, L., in re ... ... ... ... 2
Tindall, W. A., in re ... ... ... 49
Trustee, Zulu Bishopric Fund v. Kruger ... 63
Union Bank (in liquidation) ... 8, 80, 64
„ „ v. Watson's
Heirs ... ... ... 40,7?
TABLE OF CASES.
• ••
111
PAGE
Union Bank (in liquidation), in the Estate of
F. W. Hofmeyr ... ... ... 64
Union Bank (in liquidation) v. Thompson
„ „ v. Brentnall
Van Zyl and Others v. DeBeer's Executrix 59,
Van Zyl v. Schwartz
Van Zyl, F. J, Petition of
Vfljoen, G , in the Insolvent Estate of
Vogl, J. t» re
Walker v. Cape Central Railways ...
Wallace, C. W. t in re
Ward, C. G., in re ...
.. 72
.. 76
75,78
.. 72
.. 80
18,59
.. 73
.. 57
.. 29
.. 2
Webster v. Solomon
Western Province Bank v. Malherbe
Wessels v. Basson ...
Westaysen, van der, J., in re
Wet, de, J. P., in re ... ...
Wet, de, J. C. H., in re
Whitehead, W. C, t» re
White House M. A D. Syndicate, in re
Wioht v. Rutherfoord
Wilson v. Wilson and Minnaar
Wright v. Williams
Wright, J., Dr. in the Estate of the late
PAGE
89,63
••• 68
49
2
2
2
... 21
... 72
8, 51, 59
83,57
... 1
• ••
" CAPE TIMES " LAW REPORTS.
SUPREME COURT
(IN CHAMBERS).
TUESDAY, JANUARY 6.
[Before the Chief Justice (Sir J. H. DE VlLLlERS)
and Mr. Justice SMITH.]
IN THE ESTATE OF THE LATE JOHANNES
A. LAUB8CHEB.
Minors — Application to draw from S. A.
Association sufficient funds to provide for
maintenance and education.
This wu an application by the administratrix of
an estate for authority to pay ont a certain sum of
money to enable her to send one of the minor
heirs to school. — Mr. Castens, who appeared in
support of the application, stated that the deceased
by his will bequeathed certain property to two
children, subject to a life interest in favour of the
applicant, his widow. The South African Associa-
tion held a sum of ever £1,000, for the benefit of
the minors, and the applicant being desirous of
sending one of them to school for two years, asked for
authority to draw £208 for that purpose. In reply
to the Chief Justice, the learned counsel stated he
believed the applicant wished to draw the full
amount at once, but he was not aware to what
school it was intended the minor should be sent.
The matter was referred to the Master for the
purpose of ascertaining what annual payment
should be allowed for the proper education of the
minor.
GBAAFF Y. KLEBCK.
Lease — Executable — Judgment — Act 19 of
1864— Practice.
Mr. Schreiner applied for an order declaring the
rights of the respondent under a certain lease
entered into between the applicant and respondent
jointly, executable for a judgment in a suit
between the parties. Mr. Schreiner stated that
the judgment in question was obtained in respeot
B
to the non-payment of rent upon a piece of ground
whioh was leased by the parties under Act No. 19
of 1864 from the Government, subject to certain
stipulated conditions, one of which was that the
lease could not be transferred without the consent
of the Government.
The Chief Justice remarked as the ground had
been leased subject to certain stipulations it would
depend upon the terms of the lease whether it was
an executable lease or not. His Lordship asked
whether the Registrar had been applied to for a
writ of execution?
Mr. Schreiner replied that he was not aware.
The Chief Justice asked why, if the lease was
executable, the Court should be asked to interfere,
and if it was not executable, why should it be
asked to do so ?
Mr. Schreiner said he had not been instructed
upon that point, and unfortunately his attorney
was net in court.
The Sheriff (Mr. H. Tennant>, in reply to a
question from the Chief Justice as to whether any
application of this kind had been made to him,
replied in the negative.
The Chief Justice said, supposing an application
was made for the attachment of the lease of
ground held under similar conditions to these,
whether it would be granted ?
The Sheriff said he should like to consider the
question before answering.
The Chief Justice inquired whether such a lease
could be sold as one of the rights of the parties ?
The Sheriff replied it would first of all have to
be attached by an order of the Court. According
to the instructions which had been issued, rights
of this kind were never attached without an
order of the Court.
The application was ordered to staid over until
the 12th instant.
IN THE ESTATE OF THE LATE JOHN
WEIGHT, M.D.
Mortgage of landed property to meet calls on
shares in bank in liquidation.
Mr. Castens applied on behalf of the executors
in this estate for permission to raise a sum of
money on the mortgage of landed property in the
2
estate, for the purpose of meeting calls upon
shares in the Gape of Good Hope Bank. The
petition stated that the estate was liable for oalls
upon shares in the Cape of Good Hope Bank to
the amount of £3,150, and that for the purpose
of meeting that sum an attempt had been made to
sell a portien of the landed property known as
Stewartsville, but that the highest bid which was
made was £1,100. The property had cost £2,787,
bat at the present time it was impossible to obtain
a fair price for it, and it would be an advantage to
all concerned if the property remained in the
estate. The executors were therefore desirous of
raising £1,000 upon mortgage, which would be
sufficient, with the funds now in their hands, to
pay the oalls.
The required order was made.
THE PETITION OF BOSINA E. BUSSOUW.
This was an application by a married woman
for a rule nisi calling upon her husband to show
cause why she should not be allowed to sue in
forma pauperis, and by edictal citation, fer a
divoroe. The required order was granted.
GAPE OF GOOD HOPE BANK, IN LIQUIDATION.
Company — Bank in liquidation — Compro-
mises — Confirmation postponed sine die .
Mr. Searle moved, en behalf of the liquidators
of the Cape of Good Hope Bank, for the postpone-
ment, sine die, of an application for the confirma-
tion of certain compromises which it had been
proposed by them should be aocepted. The learned
counsel explained that the application was made
owing to the existence of claims against prior
shareholders, which claims might be affected if the
compromises were sanctioned without their having
been consulted.
The order was made as prayed, and their lord-
ships adjourned.
SUPREME COURT-
monday, JANUARY 12.
[Before the Chief Justice (8ir J. H. DE
VlLLIERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
admission.
Mr. Charles George Ward was admitted as
advocate, on the motion of Sir Thomas Upington,
Q.C.
PROVISIONAL ROLL.
K. LITHMAN & OO. V. DAVIDSON MOBBIft.
The final order of adjudication of the defendant's
estate as insolvent was granted.
MOLLER V. ASKEW.
This matter was ordered to stand over until the
18th January.
THE WESTERN PROVINCE BANK V. D. H.
MALHERBE.
Provisional sentence for £460 on a promissory
note, less £ 10 paid on account, was granted, subject
to the production of a translation of the note,
which was in Dutch.
THOMAS V. F. J. BOOSE.
The final order of adjudication of the defendant's
estate as insolvent was granted.
FAIRBRIDOE 6 ABDERNE V. W. J. COPELAND.
Judgment for £206 18s. 6d. was granted against
the defendant in default of his appearing.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : Stephanus
Petrus Louw, Johannes Hendrik Russouw, Blias
Schrenk, Lewis Tilney, Alewyn Petrus van Heer-
den, Wentzel Christopher Whitehead, Mattheys
Cornelis Lotter, Alfred Alexander, Jacobus Petrus
de Wet, Johannes Christian Hendrik de Wet,
Stephanus Janse Hendrik de Swardt, Izaac Arendse,
J.gon, and Christian Rudolf Leibenberg.
GENERAL MOTIONS.
CAPE OF GOOD HOPE BANK (IN LIQ.) V. C. M.
VOWELL.
Attachment of funds in hands of agent —
Proper form of process is to sue out
execution.
Mr. Searle prayed for leave to attach certain
funds belonging to the respondent and now in the
hands of G. W. Steytler, for the purpose of
satisfying certain calls on shares in the above
bank, of which respondent was the registered owner.
Vowell was in England, and G. W. Steytler held
his general power of attorney. He owged fifty
share*. Steytler bow held a certain amount of
cash belonging to the respondent. The order was
granted, the Court intimating that it would not
grant a similar order again, the proper form of
process being to sue out execution.
SBAAF V. KLBBCK.
Mr. Sehreiner moved in this matter, stating that
it had been partially heard in Chambers
last week. It was an application to have the
righta of one H. J. W. Klerck under a certain
lease declared executable. The lease contained a
clause stating that it was not transferable, nor
could there be any sub-lease unless the Government
consented. It was ordered that the lease be sold
j to the highest bidder whom the Government
would consent to take as a lessee.
MALCOLM V. PKINOLE.
In this matter the return day of the edictal
citation was extended, on the motion of Mr.
Sehreiner, to 2nd February, 1891.
TAYLOR AND SYMONDS V. SCHUNKE.
AttachmeDt of property adfundandam juris-
dictionem — Issue of Summons before rule
»mi had been granted — Rule discharged.
In this matter, Mr. Searle appeared for the
applicants and applied to have a rule nut, granted
on 20th December last for the attachment of
certain farms in Maclear, for the purpose of found-
ing jurisdiction, set aside. — Mr. Sehreiner appeared
for the respondent. — Lengthy affidavits were read
denying the existence of any liability by Taylor
and 8ymons to the respondent, stating that he had
been asked to furnish accounts and deliver certain
title deeds but refused to do so, and that an action
had been brought to compel him to do so. It
appeared that the summons was issued before the
granting of the rule, and Schunke must have
known of it.— After hearing counsel the rule was
discharged, the Chief Justice remarking that the
fact that the summons had been issued and service
effected should have been mentioned in the original
affidavit. It might have stopped the granting of
the rule nisi, and certainly would have modified it.
Schunke having withheld material information the
rule would be discharged.
IN THE ESTATE OF THE LATE J. W. GLYNN.
Mortgage — Raising of loan by.
On the motion of Mr. Searle, the Court ordered
the raising of a loan on mortgage of certain
property in the same. The amount to be £900,
and a bond ef £400 to be paid off from this. The
other £500 to be used for certain alterations in
drainage, Ac, ordered by the Town Council.
PETITION OF M. L. NELSON.
Funds belonging to person reputed to be
dead in hands of Trust Co. — Application
for payment of— The proper course is to
appoint an executor and administer the
estate as of a deceased person.
Mr. Juta moved for and obtained an order
authorising the South African Association to pay
out the sum of £26 5s., moneys belonging to one
J. W. Nelson, who disappeared in 1866, then being
sixty-five years of age, and had not been heard of
since. — The Court, in granting the order, remarked
the sum was small, but in similar cases where the
amount was larger the proper course would be to
appoint an executor and administer the estate as
of a deceased person.
CAPE-TRANSVAAL GOLD-MINING ASSOCIATION.
The liquidator's report in this case was con*
firmed, authorising a call of 2s. 6d. per share, and
the Court ordered the sum of £60 to be paid
to the liquidator for bis services.
THE UNION BANK (IN LIQUIDATION).
Mr. Sehreiner presented a list of compromises to
the Court, which were confirmed.
LOPEZ V. LOPEZ.
Mr. Shiel for the plaintiff ; defendant in person.
This was an action brought by the husband to
obtain a decree of divorce by reason of his wife's
adultery. The marriage was admitted, and evi-
dence was led showing a suspicious intimacy
between the wife and one Silver. Two witnesses
also gave evidence strongly supporting the alle-
gation of adultery. — The decree ef divorce was
granted.
WILSON V. WILSON AND ANOTHER.
Mr. Molteno moved to have the rule nisi made
absolute, allowing this suit to be brought in forma
pauperis,
MORGAN AND COLTMAN V. EXECUTORS OF
GREWER.
Will — Construction — " Absolute right " or
" Denned interest."
This was an appeal from the High Court ot
Griqualand West,
Sir Thomas Upington, Q.C., and Mr. Searle
appeared for the Appellants.
Mr. Schreiner and Mr. Webber for the Res-
pondents.
It was an action brought under the will of
the late Mr. Grewer, of Kimberley, in which the
present respondents were plaintiffs. The question
was whether the appellants had received an abso-
lute right to, or merely a defined interest in, a cer-
tain butchery business in Kimberley. The Court
below held they had merely received a denned
interest in, it. After hearing Sir Thomas Uping-
ton, and without calling upon Mr. Schreiner, the
appeal was dismissed, the Court holding that the
judges of the Court below had taken a correct
view of the will and codicil. Costs were ordered
to be paid out of the estate.
SUPREME COURT.
MONDAY, JANUARY 12.
[Before the Chief Justice (Sir J. H. DE
VILLIERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.
LONDON AND SOUTH AFRICAN EXPLORATION
COMPANY V. ROULIOT.
Support adjacent and subjacent — Lease of
diamondiferous claims — Trespass — Act 19
of 1883-t-In the absence of stipulation to
the contrary in a lease the right to lateral
support exists as a natural right incident
to the lessor's land.
The Attorney-General and Mr. Searle for the
Appellants.
Sir T. Upington, Q.C., and Mr. Schreiner for
the Respondent.
The following judgments were delivered in this
appeal which was argued last term :
The Chief Justice: This Court is much indebted to
Mr. Justice Solomon for the clearness with which he
has stated the facts of this case, and expounded the
law bearing on those facts. He found it to be
established by the evidence that the defendant, as
lessee f rem the plaintiff company of olaims in the
Du Toit's Pan Mine, extending on the north to
the margin of the mine, had in March and April,
1888, removed a ledge of reef on the plaintiff
company's land from the margin of the mine. It
la this removal of reef whioh constitutes the
alleged trespass complained of in this action, and
the main, if not the sole, object of the present
appeal is to obtain a reversal of the judgment of
the Court below, by which such removal has been
held not to constitute a trespass. The Court
below found that, in the course of working down
his claims, the defendant had left a sloping
buttress of blue ground as a support against the
reef or margin of the mine, and that the effect of
removing this buttress would have been that the
reef would become dangerous, and in a few months
fall into the defendant's claims. The Court
further held that the defendant would
have been justified in removing the buttress,
and that, inasmuch as the result of such removal
must be to make the reef dangerous, he was justi-
fied io anticipating the danger by first removing
a portion of the reef at the back of the buttress.
It will be necessary, therefore, to consider three
questions, viz. : first, what is the exact legal posi-
tion of the defendant towards the plaintiff com-
pany ; second, is the defendant entitled to remove
ground from within his own claims without regard
to the effect which such removal may have upon
the adjoining land belonging to the plaintiff com-
pany ; and third, if the defendant is bo entitled
may he go a step further and break down from the
adjoining land such ground as would, if unre-
in oved, prove an obstacle to his removing the sub-
porting ground from his own claims by the open
system of mining. The answer to the first ques-
tion depends upon the terms of the lease made in
favour of the defendant on the 26th ef August,
1886. The lessors grant, demise, and lease the
claims, " with full and free liberty, lioence and
authority to the lessees to dig and search
for diamonds and precious stones in such
claims, subject to, and in accordance with,
the rules and regulations now in exist-
ence, or whioh hereafter may be made
by the Government, for the management of
mines of this class within this colony." No rules
or regulations affecting the points in dispute have
been produced or relied upon, nor does the juris-
diction of the Mining Board enter into the con-
sideration of this case, as it did in another case
recently decided by this Court. The Inspector of
Claims, in his evidence, said that there is a regu-
lation of the Mining Board dealing with the work-
ing of reef whioh has been declared dangerous by
the Mining Board, but he did not say that the reef
in question had been so declared dangerous, nor
did he produce the regulation. Subject to any
duly-made mining rules and regulations, the
relation between the plaintiff company and the de-
fendant is that of lessor and lessee for a term of
five years, with a perpetual right, on the part ef
the leasee, his heirs and assigns, to renew the lease
so long as he or they perform the covenants
thereof. The lessee, however, has far larger rights
than the ordinary lessee of land, for he may dig
5
and search for diamonds in his claims, and he may,
under the articles of agreement bearing the same
date as the lease, remove the soil from the claims
to depositing floors outside the mine which
are provided by the plaintiff company for the
purpose. 80 large are the rights of the claim-
holders that they are referred to in Act 19 of 1883
as owners, bat, as was pointed ont in " London and
B. A. Exploration Company v. Bultf ontein Mining
Board" (7 Juta, 49), the Legislature did not intend
to confer upon them absolute rights of ownership.
What they own is the right to dig for and keep the
diamonds and precious stones found. For that
purpose the claims are subject to a burthen
analogous to a servitude, but instead of the burthen
being due, as in the case of pradial servitudes, to
the proprietor or occupier, as such, of another tene-
ment, it is due to the lessee or occupier himself of
the claims. For the due and efficient exercise of
his mining rights the lessee, as I have already
remarked, may remove ground from his claims, and
the next question is whether such right of removal
is limited by any right on the part of the plaintiff
company, as owner of the adjacent land, to support
for such land from lateral pressure. The question
whether the right to such support is recognised by
our law has been left undecided in previous cases
in which it has been discussed in this Court, but
it ought no longer to be left in doubt. The
theory of the law is that the owner of land owns
it upwards to the skies and downwards to the
centre of the earth, but it is obvious that his
exercise of the rights of ownership are practically
confined to the surface and its neighbourhood
above and below. Even at or near the surface his
rights are not unlimited, for they must be exercised
with due regard to the corresponding rights of the
owners of adjoining lands. He cannot, for in-
stance, abuse his rights by creating a nuisance on
his land which is dangerous to the health of his
neighbour. If a perennial stream of water flows
over his land the water is, in theory of law,
considered part of his land, but he cannot, by
appropriating all the water, deprive the lower
proprietors of that reasonable use to which the
natural position of their land equally entitles
them. On the other hand, the lower proprietor
must also accept the disadvantages attending the
position of his land, and may not, as pointed out
in M Ludolph v. Wegner " (6 Juta, 193), dam up
the water so as to throw it back to the injury of
the upper proprietor. The upper proprietor in the
one case, or the lower proprietor in the other, may
deem it most essential for the improvement and
cultivation of his own land to appropriate or dam
up all the water, but if, in so doing, he trenches
upon the corresponding rights of his neighbours
the law steps in with the rule : " Sic enim debere
quem meliorem agrum suum faoere, ne vicini
deterierem faeiat." This rule, within reasonable
limits, is of wide application. It is obvious that
if my neighbour were allowed to dig a deep trench
within an inch of my boundary he would have it
in his power seriously to disturb my rights of
ownership. To prevent such a disturbance minute
regulations were laid down as early as the days of
Solon for the guidance of Athenian conterminous
proprietors. A law enaoted by Solon reads as
follows : " If anyone affixes a fence in his ground
near to another man's land let him not trespass
the boundary-line ; if a walled enclosure, let him
leave the space of a foot ; if, however, a house,
two feet ; if he digs a grave or a trench let him
leave as much space as the depth ; and if a well,
let him leave the width of a pace." This law,
according to Gains (Dig. 10, 1 — 13), was taken over
in its entirety into the body of Roman laws.
Groenewegen, in his commentary on the text,
speaks of the law as obsolete, but only because, in
his time, special provisions existed in different
parts of Holland defining the spaces which
conterminous proprietors must leave between
buildings. Neither he nor Voet (10, 1 — 12) refers
specially to trenches or other excavations, but, the
principle as to the right of support being once
admitted, the removal of such support followed by
damage must have been a wrong for which the
action in factum lay. It is certainly an extraordi-
nary circumstance that there should be such a
dearth of authority in the Dutch law-books upon
this question of lateral support. The question has
probably never been one of practical importance,
seeing that there are no mines of any extent in
Holland, and the necessity for deep excavations
must seldom have arisen. In the absence of direct
authority, this Court may well be guided by well-
established principles of the Roman law and of
modern systems of law, provided they do not lead
us to conclusions inconsistent with the Dutch law.
The Cede Civile of France (Art. 674), following
the Roman law, enacts that " whoever digs a well
or ditch near a wall must leave; the space
prescribes by law and custom in this respect, or
construct the works prescribed by law to prevent
injury to his neighbour." In commenting upon
this article, Pardessus says : " By purity of reason-
ing, the owner of land who is desirous of quarrying
on his own property for stone or sand, or similar
materials, must not open the earth at the extreme
point which separates his land from that of his
neighbour, and continue to excavate perpen-
dicularly, because his neighbour's land, thus
deprived of support, would be in danger of falling
in." The law of Scotland was discussed by the
House of Lords in " Caledonian Railway Company
v. Sprat " (2 HoQ. 449), and Lord Cranworth, in
giving his judgment, said : "If I am right in
saying that by his conveyance Mr. Sprat conveyed
to the company, not only the land to be covered by
the railway, but also, by implication, the right to
A
all necessary support, then he cannot, by reason of
his having reserved the mines, derogate from his
own conveyance by removing that support. . . .
I may add that $he subject of the right of the
owners of the surface to adequate subjacent and
adjacent support has, on several recent occasions,
been discussed in the English Courts. The
principles which there govern the decisions were
not derived from any peculiarities of the
English law, but rested on grounds common to the
Scotch, and, I believe, to every other system of
jurisprudence." In England no department of
law has reoeived more careful consideration from
the Courts than that which relates to the relative
rights and obligations of the owners of the surface
and the owners of mining rights. All-important
though the different mining industries there are
to the wealth and prosperity of the country, the
rights of the owners of the surface to support
from adjacent as well as subjacent land have
always been carefully guarded. The subject was
incidentally discussed in the late Appeal Court of
this colony in " Murtha v. Von Beek" (1 Buch.
Ap. Ca. 121). That, however, was a case in which
the relative rights inter te of the claimholders in
a diamond mine were in question, and it was held
that they were not entitled to the common law
right of lateral support as against each other. The
decision was founded upon the admitted practice
of the diggers from the commencement of their
common enterprise, and upon a previous decision
ef the Appeal Court to which I was not a party.
In the subsequent case of the " Griqualand West
Company" (1 Buch. Ap. Ca. 263), I pointed out
the difference between claimholders and the
present plaintiffs, who, as owners of the soil, did
not hold themselves out as diggers, and I remarked
that the Court would not be justified in straining
the law so as to place the plaintiffs on the same
footing, in regard to the liabilities attaching to
their land, as the olaimholders. It is clear, there-
fore, that the case of " Murtha v. Von Beek "
offers no precedent for decision as to the rights ef
others than claimholders. In the subsequent case
of " HcFarland v. De Beer's Mining Board (2 H.
C., 898) the High Court of Griqualand held that
as between the owners of the adjoining properties,
Bultfontein and Vooruitzicht, both of whom had
issued licences for mining on their respective
properties, they were entitled to lateral support
from each other's land. " Is there anything," said
Jones, J., " in the mere fact that the licence is for
the purpose of mining, which changes the legal
rights these owners possessed ? I confess I cannot
see in what manner this would make a difference."
In the present case we have to consider the rights
of the lessors — the owners of the land surrounding
the claims—as against the lessee, the holder of
those claims. The important circumstance in
favour of the claimholders* alleged right to remove
the lateral support from the margin of the mine is
that the lease itself, read by the light of the
articles of agreement, gives them the right to
remove the soil from their claims on to the deposit-
ing floors for the purpose of winning their
diamonds. "That being so," said Mr. Justice
Solomon, " can it be maintained that the principle
of lateral support can be made to apply to a case
like the present ? The nature of the tenure of the
claims is to work them down ; the owners of the
soil lease the claims for that specific purpose ; the
natural result of so working the claims is to
deprive the adjoining land of lateral support ; and
it appears to me, therefore, that this tenure
is quite inconsistent with the right to lateral
support which is now claimed by the plaintiff
company. Had the company at the time when
they granted the claims in the mine really in-
tended that the surface of the ground outside of
the mine should be preserved in its natural con-
dition I think they would have expressly
stipulated for this in the contracts whioh they
made with the claimholders." There is certainly
much force in this reasoning, but, after anxious
consideration of the whole case, I am of opinion
that the reasoning is not conclusive. If the right
to lateral support exists as a natural right incident
to the plaintiffs' land — as in my opinion it does —
the parties to the eontraet must be deemed to have
contracted with a view to the continued existence
of that right. If they had intended that the
plaintiffs should be deprived of this natural right
ought not the defendant to have stipulated to that
effect ? I am of opinion that in the absence of
such a stipulation the presumption is in favour of
an intention to preserve a well-established natural
right of property rather than to part with such a
right. What was intended to be removed t was the
soil in the claims and not the soil surrounding the
claims, and if the claimholders find that it is
impossible for them to remove the soil within the
margin without disturbing the soil beyond, they
have only to abandon their claims as being no
longer workable. The Court has never gone so
far as to hold that there is any obligation upon
claimholders whose claims serve to support the
surrounding non-diamond if erou a ground to work
down such claims. The leases are renewable, but
the lessees are not bound to renew them, whereas
the lessors are bound to renew so long as the
lessees are willing to perform the covenants. The
arguments are certainly very evenly balanced, but
upon the whole I am of opinion that independently
of mining regulations, none of whioh have been
put in, er of special mining customs, none of whioh
have been proved, the right given to the defendant
to win diamonds from the claims must be taken to
be subject to the plaintiff company's right of
support. If I am correct in this view it would
follow that the defendant was not justified in
working down any portion of the reef in anticipa-
tion of the danger whioh would ensue from his
rsmeving the buttress supporting the reef. But in
view of the strong arguments in support of the
defendant's right to remove the support it would
be well to consider the third question, viz., whether,
assuming such right to exist, the defendant can,
before removing the diamondiferous soil which
sets as a support to the margin of the mine, antici-
pate the danger from reef falling into his mine by
removing the reef of which that margin consists ?
Upon this question Mr. Justice Solomon says:
" It would be absurd to hold that the defendant in
working down bis claims might, by removing the
lateral support from the margin of the mine, cause
the ground to fall into the mine, but that he had
no right to ge upon the plaintiff company's land in
order to remove the danger. Once granted that
there is no right to lateral support, it seems to
follow, as a matter of course, that the defendant is
entitled to de all necessary work upon the margin
of the mine in order to prevent a fall of ground
into his claims and the probable stoppage of his
works." He then refers to a dictum of mine in the
Griqualand West Company's case, which I have
already cited, to the effect that it might fairly be
taken that the owners had admitted the right of
the claimholders to remove obstacles from the
owners' own claims to the proper working of other
claims. It would perhaps have been wiser en my part
not to have uttered an unconsidered dictum which
was not required for the elucidation of the case,
but I am by no means satisfied that the dictum
itself was unsound. In a previous portion of the
judgment I had referred to the distinction between
owners and diggers and between the mine itself
and the land surrounding it. A recognised practice
had existed under whioh " when a claim had been
abandoned the owners of the adjoining claims had
the right to work down those abandoned, and then
to register a lien for expenses against those claims,"
and it was in reference to this practice as much as
to the terms of the lease that my remark was
made. The resumption of a diamondiferous claim
by the company does not impose on the company
the duty of becoming active miners, but may well
subject them to the passive obligations to which
the previous holder of the claim had been subject.
I cannot, however, agree with the view of the
Court below that " if a olaimholder was justified
in going upon the plaintiff company's claims in
order to remove danger it would follow a fortiori
that he would have the right to do similar work on
the non-diamondif erous reef at the margin of the
mine." The sole and ostensible object of the
lease of claims is to permit of their being worked
down in the search for diamonds, and the danger of
any snch leased claims being allowed to stand as a
menace to the adjoining claims could not have
^•en contemplated by the parties to the leases.
But nothing is said in the leases as to the land
surrounding the claims, although the parties must
have known that sooner or later it would, unless
sufficiently supported, menace the adjoining claims.
I conf eRS I do not perceive the absurdity of holding
that the defendant may remove lateral support
from the margin of the mine and yet may not go
upon the plaintiffs' land for the purpose of break-
ing down the margin itself. In removing suoh
support he commits no trespass, but only takes
away what, according to my present assumption,
his lease authorises him to take away.
In breaking down the reef without the owner's
consent he commits a trespass which nothing but
absolute necessity can justify. An obligation
arising from necessity cannot be enlarged beyond
what necessity requires. Where a person lets a
portion of his land with no outlet except over the
unleased portion, the lessee is entitled to a right of
way over such unleased portion; but, as was
pointed out in "Peacock v. Hodges " (Buch. 1876,
p. 69), •' the right of road by necessity does not
give a right to the enjoyment of a greater servitude
than the absolute necessity of the case requires."
So strictly was this principle applied in Holland,
in the case of a sale, that according to Van
Leeuwen (Comm. 2, 21, 12), "if the land had
been so situated that there was an outlet by land
in front and by water behind, then the land sold
must be satisfied with the outlet by water." The
rule applicable to an ordinary lease would also be
applicable to a mining lease. The lessee has, as
incident to his mining rights, the right of doing
upon the unleased portion whatever is necessary
for the enjoyment of such mining rights, but he
can do no more. He may even fix such machinery
as may be required for drawing the soil from the
mine, but if the duty of allotting sites for such
machinery belongs to some public body, like a
Mining Board, then, according to a recent decision
of this Court, he is held strictly to his contract,
and would be guilty of trespass if he erected
buildings and machinery without the consent either
of the owner or of the Mining Board. Under the
Roman law the owner of a dominant tenement
had the right to do what was requisite for the
enjoyment of his servitude, but this right was
subject to the condition that he imposed no greater
additional burthen upon the servient tenement
than was absolutely necessary. If, for instance,
he had a right to lead water over the servient
tenement by means of pipes, he could not substitute
a conduit of stones (Dig. 39, 3, 17, sec. 1), and he
was bound not only to exercise ordinary skill and
care, but also to repair, as far as he could, what-
ever damage he may have done to the servient
tenement (Dig. 8, 2, 18). In the present case, it
has been contended, on behalf of the defendant,
that it is necessary for the due enjoyment of his
mining rights that he should be allowed to break
8
down portion of the reef on the plaintiff's land.
The argument is— and this is the most foroible
way of stating it — that it would be a mockery to
say that he has the right to remove the support if
he has not the auxiliary right to do a necessary act
on the plaintiff's land as a preliminary to such
removal. The answer is two-fold. In the first
place, the defendant has not stipulated, as he
might have done, for a right to break down the
reef as well as to remove soil from the claims. In
the next place, it is dear that, by means of under-
ground mining, the soil can be removed from the
claims without first removing part of the reef.
The mode of mining may be more expensive than
open workings, but it is admitted to be quite
practicable. It is said, however, that above, and
not underground mining was contemplated by the
parties. This may be an argument, although not a
oonclnsive one, in favour of the defendant's right
to remove lateral support from the reef, so long as
he remains within his own limits, but it affords no
excuse for trespassing beyond those limits. Such
a trespass, without the consent of the owners, or
of some independent public body, was as little
contemplated as underground mining. I repeat
that, in the form in which the appeal comes before
us, we must decide the case without reference to
any regulations which may possibly modify the
rights of the parties. In the absence of such
regulations, or of any mining customs, or of any
resolution of the Mining Board, I am of opinion
that no right arising out of necessity exists to
remove any portion of the plaintiffs' land, so long
at all events as the defendant can by a different
but practicable system of mining dispense with the
necessity of such removal. The argument as to
the reef being a nuisance was not seriously pressed.
If it was a nuisance it was not one which required
abatement without delay, and the proper course
would have been to apply for an interdict against
its continuance, or to bring an action for its abate-
ment ; but it is not pretended that such an applica-
tion or action could have been successful. I regret,
therefore, that I cannot agree with the conclusions
of the Court below upon this part of the case. If
the removal of the reef was a trespass it would
follow that the deposit of the removed reef upen
floors let for the purpose of depositing soil from
the claims was not strictly authorised by the terms
of the articles of agreement. The damage done
was not great, and seeing that the plaintiffs did
not object to the removal of the reef till a consider-
able part of the work had been done, and that
their main object is to establish their legal rights,
we are of opinion that a judgment for £6 damages
and costs would have been sufficient. As to the
question whether diamond if erous Boil was removed
from the plaintiffs' land, the Court below found
that the 17,000 loads were really removed from the
defendant's own claims, and there is evidence to
support the finding. The appeal will therefore be
allowed, and judgment entered for the plaintiffs
for £5 damages, with costs in this Court and in the
Court below.
Mr. Justioe Smith : That one should so use hit
own property as not to interfere with the rights of
another is a maxim adopted in the jurisprudence
of every civilised nation. One who has rights
connected with land adjoining that of another
cannot in the exercise of those rights do anything
that will cause his neighbour's soil to (subside or)
fall down. In other words, the owner of land has
the right of lateral support from his neighbour's
land. This right may of course be abandoned by
agreement. Where the owner of land grants to
another the right to dig and search for minerals on
a portion of his land the grantee must exercise his
right so as net to injure the adjoining land of the
grantor, provided there is no clause in the agree-
ment which permits him to work in such a manner
as may necessarily cause injury, or provided the
only way in which the work could be done was
such that injury would probably arise. In this
case there is no such clause in the lease, and there
is no evidence to show that when the leases were
granted the necessary or probable consequence of
working in a proper manner under the rights
given would cause reef to fall in. There was no
obligation on the plaintiffs to remove the reef in
order to prevent its falling in ; the obligation was
on the defendant, if he chose to work his olaim
by open mining, to leave such a lateral support as
would prevent the plaintiffs' ground falling into
his claims. The defendant therefore committed
a trespass in going upon the plaintiffs' land and
removing the soil, and is liable in damages for the
injury caused. I concur in the estimate of that
damage stated in the judgment of the Chief
Justice. Even if there had been an obligation
upon the plaintiffs to remove the soil so that it
should not fall into the defendant's claims, in my
opinion the defendant would bave had no right to
go upon the plaintiffs' land and remove it. By the
law of England, as laid down in the older cases, if
the owner or occupier of land creates a nuisance
upon his land, his neighbour may enter upon his
land and abate it, but the tendency of the more
recent law is to modify this rule. If the nuisance
has been oreated by another person, the neighbour
cannot justify his trespass unless he has previously
given notice to the owner or occupier. Our law
does not allow a man to take the law into his own
hands, except in cases of necessity. If one creates
a nuisance dangerous to health unless instantly re-
moved, one likely to be injured would be justified
in abating it, but in ordinary cases one is not
justified, in my opinion, in entering upon another's
and even to abate a nuisance.
Mr. Justice Buchanan : To the plaintiffs' olaim
for damages for trespass on their ground adjoining
9
the Da Toit'i Pan diamond mine, the defendants
plead justification, alleging that in the course of
working the claims in the mine leased to the
defendant company by plaintiffs, certain neigh-
bouring and adjoining ground, being the main reef
of the said mine, became threatening and dangerous
to the workings of the said company, and that the
defendants thereupon of necessity removed the
said ground to ensure the safe working of the said
claims as by law they were entitled to do. The
plaintiffs are the owners of the mine ss well as of
the surrounding property, and by the lease of the
claims within the mine they gave the defendant
company as lessees full and free liberty, licence
and authority, to dig and search for diamonds and
precious stones in such claims, subject to and in
accordance with the rules and regulations now in
existence or which hereafter may be made by the
Government for the management of miaes of this
class. According to the judgment in the Court
below the plaintiffs contended generally that claim-
holders, in the course of their work, have no right
to deprive the owners of the soil of their common
law right to lateral support. Now, whether or not
the doctrine of lateral support is known to our law
has never, as far as I can discover, been definitely
settled by any decision of the Supreme Court ;
though it has been referred to in several cases, and
was assumed in the case ef "McFarland v. De
Beer's Mining Board" (2 H.C. Rep., 398). As
might be expected, the Dutch authorities are not
explicit on the point. Indeed, in the Court below,
it was argued that the only right to lateral support
known in Roman-Dutch Law was the servitude of
supporting a weight. Still, after considering the
arguments so fully set forth by the Chief Justice,
the dicta in the several reported judgments, and the
principles upon which the doctrine is founded, I
think we ought now to hold that it is part of our
law. The maxim sic utere tuo ut alienum rum ladas
may be said to contain t he germ of the principle of
lateral support. Assuming, then, the existence ef
the right of lateral support in ordinary cases, we
have the decision of the late Court of Appeal in
"Murthav. Von Beek" (1, Ap. C. Rep, 121),
affirming that as between claimholders themselves
in this very mine, the rule eannot be applied.
This being s*, that decision turned simply
on the question whether or not there had
been negligence on the part of the claimholder.
The Chief Justice said: "The counsel for the
appellant admitted that there is an implied obliga-
tion upon every claimholder, who holds himself
out as a digger, to use reasonable diligence in work-
ing down his claims, a» d not to lag behind unneces-
sarily to the injury and detriment of his neigh-
bours. 1 do not see how the principle of lateral
support embodied in the English law can be made
to apply to cases of this kind. Even if it be the
law of the Colony that a man is entitled to lateral
C
support, I do not see how it can apply to oases
where a person, having a claim surrounded by
neighbours who were not as diligent as he was,
might have to leave extensive lateral support to
each of those neighbours, leaving very little
ground for himself to work in." All the judges
concurred in this finding, Barry (Judge President)
expressly adding: "I cannot assent to the
proposition that lateral support is a duty in the
mine in question." There is, however, a material
difference between the position of claimholders
among themselves, persons who have leased claims
in a mine for the express purpose of working them
down, and the owners of the soil who, as the
plaintiffs have always done, have persistently
refused to take upon themselves any responsibili-
ties beyond that attaching to them in their
capacity as lessors. That was indicated in the
cross appeals in the cases brought by the
Griqualand West Diamond Mining Company
against the present plaintiffs (1 Buch. Ap. Cases,
239). It may be deduced from those cases that
when claims which have been leased have been
abandoned and have reverted to the owners of the
soil, that such owner is not bound, as a claimholder
would have been, to work down such abandoned
claim or to remove debris falling therefrom.
That position was recognised by the subsequent
legislation contained in Act No. 12, 1889, which
puts the owner of the soil to his election to
undertake the liabilities of an ordinary claim-
holder, or to allow the Mining Board to step in,
but unless the owner of the soil consented no such
burden was cast upon him. If, then, no liability
attaches to the lessor in respect of abandoned
claims in the mine, it is an a fortiori proposition
that none attaches to him as owner of land outside
the mine which has never been leased at all. The
fact that there was no obligation attaching to the
owner in respect of land outside the mine would
give force to the contention that he would be
entitled to his common law right of lateral support
to keep that land intact. But, on the other hand,
we find that though there is no obligation on the
owner even in respect of abandoned claims, yet he
has no right of lateral support in respect of such
claims. The same rule might not illogically follow
in respect of land adjoining claims which he had
leased, as obtained in regard to abandoned and
therefore unleased claims. I find some difficulty
in this case caused by the absence of evidence on
points which seem to me material to a correct
decision of this important question. We do not
know what rules and regulations, referred to in
the lease, are in existence. Though there is
evidence that the defendants acted in a thoroughly
proper miner-like way, and properly carried out
their operations, no custom has been pleaded.
The learned judge in the Court below states that
it is in evidence that from the opening of the
10
mine in 1871 up to the present time the universal
and approved method of mining in this mine has
been by the method of open working, and he says
that it is also clear that this method was in
contemplation of the parties at the time when
the present lease of the claims was entered into.
Though the record is not very dear in supporting
this finding, it is no doubt supported by the fact
that annexed to the lease of the claims themselves
there is an agreement allotting to each olaimholder
a depositing-floor upon which to place the soil
removed frem the claims. It is also in evidence
that although during the past working nearly all
the margin of the mine had fallen into the mine,
no objection was ever before raised by the
plaintiffs. From MoFarland's case, already
referred to among others, it appears that the
Mining Boards at certain ef the Griqualand West
mines have power to tax the claim hold ere to raise
funds for the express purpose of removing the
reef ; and further, in arguing this case, counsel on
both sides have not dealt with this question, the
Attorney-General, for the plaintiffs, asserting that
the question of lateral support had nothing to do
with the issue ; and Sir Thomas Upington, for the
defendants, remarking that the question of the
right of lateral support need not be argued as
between the company and its lessees. Under
these oiroumstances I am not now prepared to
decide that the plaintiffs are entitled to lateral
support for the reef round the mine, from claims
in the mine leased by them for the express purpose
of being worked down and the soil therefrom
removed. But T think that the Attorney-General
correctly contended that there was a missing link
in the chain of the argument in the lucid judg-
ment of Mr. Justice Solomon, viz., that whether or
not there was a right to lateral support, as there
was no obligation on the owner of the soil to do
anything, but that he was entitled to lease his
ground round the mine in a state of nature, and
as he had not granted to the lessee of the claims
any right to work elsewhere than in the claims
leased, there was a trespass committed when such
lessee went outside his claims, and worked down
the reef situated beyond them. The learned
judge says it weuld be absurd to hold that the
defendant in working down his claims might,
by removing the lateral support from the margin
of the mine, cause the ground to fall into the
mine, but that he had no right to go upon the
plaintiff company's land in order to remove the
danger. But this absurdity is no answer, if sueh
is the position contended for by the parties. This
difficulty was evidently felt by the defendants,
for they attempted to justify their conduct on the
ground of necessity. But here again the defend-
ants seems to ire to have failed. To support
such a plea there must be very much stronger
evidence than has been led in the case, and we
cannot overlook the fact that in other mine*
this alleged necessity has been overoome by
adopting a different manner of working. As
the case stands, it seems to me that the appeal
must be allowed, and the judgment entered in
the Court below for the defendants set aside. No
substantial injury has been sustained by the
plaintiffs, and I would prefer, in the absence ef
any proof of custom, or of any evidence of any rule
or regulation such as that contemplated by the
agreement between the parties, and without full
argument of the question of the right or otherwise
to lateral support, that the judgment should be
altered to one of absolution from the instance.
In strictness, however, the onus was on the
defendants to justify their conduct, and, having
failed to do so, the plaintiffs are entitled to a
judgment, which would carry costs, both in the
Court below and on appeal.
SUPREME COURT,
TUESDAY, JANUARY 13.
[Before the Chief Justice (Sir J. H. DE VlLLIERS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.]
mabai6 v. van bensbubo.
Will mutual — Codicils made subsequently to
testator's death — Exception.
Where under a mutual will a daughter
had acquired a " vested interest " her exe-
cutors are the proper persons to sue and not
her children.
Mr. Searle, with him Mr. Graham, for plaintiff.
Mr. Schreiner, with him Mr. Molteno, for the
defendant.
This was an action commenced in the Circuit
Court of Mossel Bay, last October, to re-
cover a share of an inheritance alleged to be due
under the will of the late Mr. J. van R ens burg and
his wife. From the mutual will made in 1876 the
survivor was appointed executor, and was to have
possession of the estate during his or her lifetime.
After the death of the survivor the joint estate was
to go to their children, certain legacies were given,
and in the event of the children dying before " us,
the testators," their lawful descendants were in-
stituted heirs. The plaintiff's wife was a child of
S. M. van Rensburg, who married one Wilkinson,
S. M. van Rensburg being a daughter of the
testators. The testator died in 1881, S. M. van
11
Rensburg (Mrs. Wilkinson) died in 1887, and in
May, 1887, subsequently to the death of IS. M. van
Rensburg, the testatrix died. Certain codicils had
been made by Mrs. Van Rensburg, the testatrix,
subsequently to testater's death, and it was alleged
that she having adiated these codioils were invalid
as interfering with the provisions of the mutual
will The Court, however, decided the case on an
exception taken to the summons. The exoeption
was that, from the above facts, Mrs. Wilkinson had
taken a vested right under the will, and that
her executors were the proper persons to sue,
and not her children. The Court held that the
wards 4t before us, her testators," meant both
testators, and Mrs. Wilkinson, the moment she
survived her father, though she predeceased her
mother, took a vested interest, and that therefore
her executors would have been the proper persons
to have brought this action. In the case of her
insolvency her trustees would have been entitled
to any amount due to her under the will.
MOLLBK V. ASKEW.
Insolvency — Sequestration of estate — Pro-
visional order set aside on want of proof
of insolvency — Act 38 of 1884.
This was an application to have the provisional
order of sequestration against the respondent's
estate made final. Mr. Schreiner appeared for
the applicant; Sir Thomas Upington, Q.C., for
the respondent. The provisional order was granted
on 7th January, and made returnable on the 12th,
by Mr. Justice Smith. The respondent was in-
debted on a mortgage bond on which an instalment
of £200 became due on 81st December ; the
defendant appeared unable to pay. From the
affidavits it appeared that H. P. Moller, on behalf
of his son, wrote asking for the payment of the
instalment. In reply a letter was written by
Askew, stating his inability to pay. This letter
was annexed to the original petition. Askew, on
Holler's calling on him, showed a statement in
which he had a considerable credit balance. Moller
said he would have to write to his son, and the
first notice Askew had of any proceedings was by
an attachment by the Master's messenger. In
consequence he was not able to get at his books,
but stated that, in addition to the statement
already shown, he had property worth £400 and
£120, besides the business premises worth £1)200*
Askew further stated he could easily have raised a
loan of £900.-— The Chief Justice to Mr. Schreiner :
The Court has again and again held that under the
Act of 1884 there must be very dear proof of in-
solvency.— Mr. Justice Smith: The only reason
why I granted the petition was on account of the
letter annexed. If the statement
annexed as it should have been I should^Je^ainly.
not have granted the order. — The Chief Justice :
The proper course would have been to have sued,
and on a return of nulla bona the order would have
been made. After hearing Mr. Schreiner, and with
out calling upon Sir Thomas Upington, the Court
set aside the provisional order with costs, the Chief
Justice stating that the petitioner was bound to
prove the insolvency, and the fact that the respon-
dent was unable to pay. In the present case the
petitioner made a statement which induced the
learned judge to grant the order, and withheld a
statement which showed a credit balance due. On
this no proper conclusion could be drawn, but the
additional evidence clearly shows there is no
insolvency. The application should never have
been made, and must now be set aside with costs
against the applioant.
SUPREME COURT
(IN CHAMBERS).
TUESDAY, JANUARY 20.
[Before the Chief Justice (Sir J. H. DB
Villiebs), Mr. Justice SMITH, and Mr.
Justioe Buchanan.
admission.
On the motion of Mr. Molteno, Mr. William
Molteno Bisset was admitted to practise as a con-
veyanoer.
IN BE ESTATE OF LATE W. WESLEY MARTIN.
Mortgage of landed property in estate of
deceased person to pay off bond and other
debts.
Mr. Castens presented an application by the
executors of the above estate for leave to mortgage
the landed property of the estate in order to raise
a loan to pay off an existing bond for £1,400 and a
debt of £600 due to the estate of the late John F.
Martin, and for an order that the oosts ef the ap-
plication might be paid out of the estate.
The Court granted the order.
IN BE THE ESTATE OF THOMAS HALL,
DECEASED.
Mortgage of landed property in estate of
deceased person to meet calls on shares in
bank in liquidation.
Mr. Watermeyer moved, on behalf of the execu-
i
12
tors of the above estate, for leave to mortgage
certain property situated in Hof-street to raise
necessary funds to pay calls in respect of Union
Bank shares.
Order granted.
IN RE ANNA SOPHIA HAMMAN, AN ALLEGED
LUNATIC.
Mr. Jtita moved for the appointment of a curator
ad litem, and for leave to give evidence on affidavit.
The Conrt granted the order, and appointed the
Beaident Magistrate of Victoria West curator
ad litem, and allowed the evidence of Dr. Drew to
be given on affidavit.
THE CAPE OF GOOD HOPE BANK, IN
LIQUIDATION.
Mr. Searle, on behalf of the liquidators of the
above bank, moved for the confirmation of
certain compromises effected by the liquidators.
The Court granted the order, subject to the list
of compromises being amended and fuller details
given.
THE PAABL BANK, IN LIQUIDATION.
Mr. Schreiner moved, on behalf ef certain share-
holders and customers, for leave to inspect the
books of the bank ; to make extracts from the
same ; and to be assisted by an accountant.
Mr. Searle, for the offioial liquidators, consented,
and the order was granted.
THE PAABL BANK, IN LIQUIDATION.
Liquidators' First Report.
Mr. Schreiner presented the first report of the
liquidators of the Paarl Bank, as follows :
The official liquidators were appointed by the
Honourable the Supreme Court on the 20th De-
cember, 1890. An examination into the affairs of
the institution has been made by them as well as
the limited time since their appointment and the
means of information at their disposal would
allow. The result is as follows :
The liabilities of the bank, according to the
books on the 6th December last, were, exclusive of
shareholders* capital and reserve funds, as fol-
lows :
Deposits, fixed ...£148,266 11
Deposits, floating ... 44,022 16 8
£187,278 17 2
Notes outstanding 4,170
Unpaid dividends 850 18
Loan 26,760
£219,049 10 2
£993 7 3
The assets of the bank the liquidators estimate
as under :
Coin in the bank's
coffers
Balance in and notes
of other banks ...
Estimated present
value
Bills and notes un-
der disoount
Bills and notes due
£1,127 12 1
992 12 1
132.212 16
56,664 9 1
7,620
3,318
£188,767 4 1
Estimated present
value
Advances against
securities
Estimated present
value
Bank premises
Estimated present
value
Landed property ... 2,871 12
Estimated present
value '
Mortgage bonds ... 33,394 4
Estimated present
value
Shares ...
Furniture
Estimated present
value
Loans ... ...
Estimated present
value
67,451 13 6
1,914
334 17
9,300
2,418
2,500
1,575
24,600
100
9,300
£109,980 12 10
This result is ascertained after making allow-
ance for such bad and doubtful debts as at present
can be estimated, and shows a deficiency of
£109,068 17s. 4d. Owing to the position of the
debtors, and the nature of their assets, it is hardly
necessary to remark that great care and caution
will have to be exercised in dealing with these
assets, the recovery of which must extend over
many years, unless an immediate realisation be
decided on, which mode the liquidators are ef
opinion is dangerous, and will probably lead to
very serious loss. It is a matter for regret that the
directors did not several years ago make a valua-
tion or estimate ef their assets ; the results would
have convinced them of the very unsatisfactory
state of affairs.
A very large proportion of the bills at present
under discount is in connection with gold scrip
transactions, the value of the sorip attached to
these bills being at present merely nominal, clearly
showing that the directors, taking into considera-
tion the small capital of the bank, viz., £13,810,
have been overtrading to an unjustifiable extent.
u
From the 30th June, 1890, to the date cf stoppage,
the 6th December last,
The liabilities of some of the
directors increased by £11,481
That of the cashier and ac-
countant by ' 7,591
Joint liability of cashier,
directors and others 8,871
22,448
At the closing of the bank's
doors :
The joint liabilities of some of
the directors amount to ... £88,804
Of the cashier 9,657
Of the cashier jointly with others 9,044
Of the accountant 7,942
60,447
—equal to about one-third of the total amount of
the bills under discount, and about five times the
amount of the bank's capital.
It is remarkable that in the published half-
yearly statements of the bank, notably that of the
30th June last, the overdue hills figure at
£4,889 19s. lid.; the overdrawn accounts £1,979
14s. 8<L, whereas at the date of the stoppage the
overdue bills appear at £56,554 9s. Id., and the
overdrawn accounts £5,799 14s. 3d.
This is explained by the fact that at or about
the period of the publication of the half-yearly
statements required by law, nearly all overdue
bills were renewed, in some instances the discount
being added to the renewals ; the overdrafts were
extinguished by the acceptance of promissory notes
from the debtors irrespective of their financial
position. This practice appears to have been in
vogue for some time past. Had a proper system
of audit inspection been followed, the liquidators
consider that the present deplorable state of affairs
could have been averted.
The liquidators, though they have not had full
time to go thoroughly into the conduct of affairs,
have nevertheless seen sufficient to satisfy them
that gross and serious errors of judgment were
displayed in the management of the bank's affairs,
and that the directors have failed to make suffi-
cient provision for the losses likely to arise on
the very large amount of bills under discount.
Although it ought to have been obvious heavy
losses would occur, no proper provision was made
fer the same, nor was any reference made thereto
in the past annual report laid before the share-
holders. The directors, instead of oonfining them-
selves to sound legitimate banking, made consider-
able advances on securities having only speculative
values. Another injudicious act on the part of
the directors was to borrow a sum of £26,750 on
the best securities of the bank, with the full
knowledge of the position of affairs.
There are at present 2,762 registered shares, of
which 870 are held by insolvent shareholders, 688
are under pledge to the bank by some of the
directors and the ca shier, 70 are held by the bank
itself, 555 are pledged by other shareholders.
Great depression naturally exists in consequence
of the stoppage of the bank, the shareholders being
mostly all proprietors of farms and landed proper-
ties in the village and district of the Paarl. Some
of the properties are already mortgaged to a certain
extent of their value, leaving little margin avail-
able to meet the heavy call which will be necessary
to meet the estimated deficiency of £109,068 16s.
4d., besides which the continuous pressure of sales
whioh will have to be resorted to during the liquida-
tion must seriously affect the value of properties,
and further tend to depreciate the value of the
other securities. The liquidators have therefore
very great difficulty in arriving at an estimate on
which they can confidently rely of the probable
result of the liquidation, whioh they fear will
prove disastrous to nearly every shareholder, as
the prospects of a more favourable realisation
than that indicated are very remote.
To add to the difficulties, several shareholders
are already insolvent ; whilst others, independent
of their share liability, have heavy obligations to
the bank, which it is anticipated they will be
unable to satisfy, thus leaving the burden of the
bank's liabilities to be borne by a reduced list of
contributories, some of whioh indubitably are not
in a position to meet them fully.
Under these circumstances it becomes difficult
to decide what call to recommend to be made upon
shareholders towards payment of the claims of
creditors. After much deliberation the liquidators
came to the conclusion to suggest that the call
should be fixed at not less than £250 per share,
payable at once.
It is with much concern that the liquidators
must, however, record their fear that very few of
the shareholders will be able to meet this call in
full ; and it is estimated that, after every share-
holder on the list of contributories is excussed, the
result will only yield about £58,000, leaving an
estimated deficiency of about £57,000.
Fer the purpose of settling the list of con-
tributories, as required by the 18th section of the
Act, an extract from the share registry of the
present shareholders now registered is attached to
this report (marked A). We are advised by
counsel to the liquidators that to meet the deficiency
referred te it will be necessary to recur to former
shareholders, and accordingly beg to annex hereto
a list of those persons who were the immediate
transferors of the existing contributories ; and we
also beg to ask leave of the Court, in the event of
further deficiency, te present an additional list of
former shareholders.
The liquidators have already had several applica-
tions made to them for compromising claims and
for extension of time, whioh in most oases it would
14
be for the ultimate advantage of shareholders
should be entertained. Similar questions are
likely to occur more frequently when the call is
made upon shareholders. Each case will be pro-
perly inquired into, and from time to time reported
to the Court for direction thereon, after these
proposed compromises have been advertised for
inspection of contributories for fourteen days.
Under the 27th section of the Act, it is requisite
for the Court to fix the time within which creditors
are required to prove their claims, and to meet the
convenience of all, the liquidators would suggest
that claims be received till the 28th February, 1891.
The liquidators have in certain cases, in the
interest of the liquidation, deemed it prudent to
accept part renewals of promissory notes, which
the makers and endorsers could not meet in full ;
and will continue this course when necessary.
They feel assured that by adopting this practice it
will tend to protect the interests of all concerned.
The liquidators have in some instances allowed
depositors to set off their credit balances against
their indebtedness to the bank, and they also
desire authority to set off their deposits against
their share liability. All moneys received have
hitherto been kept in the bank's safe; and the
liquidators now desire the Court's authority to
deposit same in the Standard Bank.
The liquidators have now to solicit the order of
this Honourable Court on the following points,
viz.:
First : To settle the list of contributories under
the 18th section of the Act, for which purpose the
annexures, referred to in this report, are submitted.
Second : To fix the time and mode the creditors
shall prove their claims under the 27th section.
Third : To assess the amount of the call under
the 22nd section.
Fourth : To direct as to the extent tVis Honour-
able Court will grant the liquidators the power to
compromise under the 44th section.
Fifth : To authorise the liquidators to pay
dividends without first filing accounts.
Sixth : To authorise the liquidators employing
Mr. C. C. de Villiers, of Cape Town, as their
attorney, they having already been compelled to
avail themselves of his services.
Seventh : Under the 18th section, to fix the
remuneration to be paid to the liquidators.
The Court granted the usual order as to the
report lying open for inspection for fourteen days,
and for publication of the notice.
TAYLOR AND 8YMONDS V. BCHUNKE.
Costs— Security for — 8th and 14th Rules of
Court.
Witham vs. Venables (1 Menzies, 291) as
explained by Lumsden vs. The Kaffrarian
Bank (3 Juta, 366) approved A non-
resident plaintiff who owns immovable
property in the Colony the value of which
after deduction of any mortgage debts due
thereon would suffice to pay the probable
costs of the action is relieved from giving
security for such costs.
Where, however, he is defendant in recon-
vention he is obliged to give security to
perform the judgment of the Court
{cautio judication solvi).
Mr. Sohreiner moved, on behalf of the defendant?
that the plaintiffs should be obliged to give
security for the costs of a pending action, in which
defendant Bet up a claim in reconvention. Mr.
Searle, on the authority of Lumsden v. The
Kaffrarian Bank, 3 Juta 366, Voet. (2, 8, 1) and (2,
8, 4,) and Van Leeuwen, Roman-Dutch Law. Book,
5, ch. 17, sec. 9, contended that the plaintiffs were
not obliged to give security.
Mr. Schreintr argued that the case of Lumsden
v. The Kaffrarian Bank did not apply, and quoted
Voet (2, 8, 10) in support of his contention.
The Court, having heard the arguments of
counsel, reserved judgment.
Pogtea— (February 2nd). — The Court delivered
the following judgment :
The Chief Justice said: Securities given by
litigants under the Dutch system of procedure
were of two kinds, viz., the cautio de sistendo and
the cautio judi cat urn solvi. By the former he under-
took to stand to and abide the judgment of the
Court, by the latter he undertook to perform it.
(See Voet, 2, 6, passim.) Under the 8th Rule of
Court an unsecured creditor for £15 or upwards
can obtain from the Registrar of the Supreme
Ceurt a writ for the attachment of a debtor who
is about to remove, or is making preparations to
remove, from the Colony, and such a writ stands
in lieu of the ordinary summons. If the de-
fendant gives no security he is kept under arrest
until judgment, but, when once judgment has been
pronounced, he is discharged from arrest, and, if
he is to be kept any longer in prison, it can
only be under a separate process for civil im-
prisonment in execution of the judgment. But a
defendant may be released before judgment
upon giving security under the 14th Rule
of Court that he will " stand to, abide, and
perform the judgment of the Court, or render him-
self to the prison of the said Court in execution
thereof." It has been more than once decided that
these rules were not intended to deprive the Court
itself of the power to order the arrest of a de-
fendant, or require security from him in cases,
although not falling within the rules, where the
law authorises such arrest or security. It is
15
obvious that these rules apply only to the case
of resident defendants. In order to confirm
jurisdiction in an action against a person not
domiciled in this colony an application must be
made to the Court for the attachment of his person
or property. Such an application, as pointed out
in " Einwald v. German West African Company "
(5 Juta, 86), would not be granted, unless some
ground of jurisdiction existed, suoh as in the case
©f a tort, that it was committed in this colony,
or in the case of a contract, that it was to be per-
formed in this colony, or that the subject-matter
was situated within this colony. " The object of
the attachment," says Perkins (De Jure Sutendi,
46, 11), u is not only to secure the debt, but also
to facilitate proceedings against the debtor."
The order for attachment, therefore, could
only be discharged upon sufficient security
being given. The ownership of immovable pro-
perty did not, under the Dutch practice, relieve the
defendant from giving such security, unless the
property itself was under attachment, in which
case the attachment protected the plaintiff. (See
Groenen ad Dig., 2, 8, 15.) The secarity thus re-
quired was judicatum solvi, and not de tistendo,
which was practically obsolete. (Groenen ad
Jntt n 4, 11, 2, and 4.) In the present case there is
no subsisting attachment upon the respondents'
land, the order previously given having been dis-
charged on the ground that a material fact was
not disclosed to the Court by the plaintiff when he
obtained the order. That fact was that the re-
spondents had themselves commenced an action in
this Court against the applicant. This was a
most material circumstance, for, according to the
rule reconrentio forum competent efficit y the respon-
dents could net, after instituting their action,
question the jurisdiction of this Court to
entertain the applicants' claim in reconventien,
or, by relinquishing their action, prevent the
Court from deciding the claim in reconvention.
(See Voet, 5, 1 , 78.) The questions which must
now be determined are: (1st) whether, as
plaintiffs, the respondents must be ordered to
give security for costs; and (2nd) whether, as
defendants, they should be ordered to give
security to perform the judgment of the Court
upon the applicant's claim in reconvention ;
and (3rd) if security is to be given, for what
amount it should be. The first question has been
practically decided by the Court in the case of
"Witham v. Venables " (1 Menz., 291), as
explained by the subsequent case of " Lumsden v.
The Kaffrarian Bank (3 Juta, 866). It is too late
to question the correctness of the former case as
so explained, seeing that it has been acted upon in
several subsequent cases. We must, therefore,
take it to be the proper practice that a nonresi-
dent plaintiff, who owns immovable property in
this colony, the value of whioh, after deduction of
any mortgage debts due thereon, would suffice to
pay the probable costs of the aotion, is relieved
from giving security for such costs. The respon-
dents own immovable property of great value
which is mortgaged for a comparatively small
sum, and ought not therefore to be called upon
to give such security. The second question
has never yet been determined in this Court.
If the respondents had not instituted any
action against the applicant there would have
been no doubt, in view of the authorities I have
cited, as to their liability to give security as defen-
dants. The fact that they have forestalled the
applicant in this suit ought not, in my opinion, to
relieve them from that liability. According to
Voet (2, 8, 1) a non-resident plaintiff can be called
upon to give security net only for the defendant's
costs, but also for his claim in reconvention.
According to Van Leeuwen (R.D. Law, 5, 17, 9),
the defendant may request security for costs, and
for that which he may claim in reconvention, and
Chief Justice Kotze', in a note to his translation of
the passage, refers to a Transvaal case which was
decided in accordance with the text. The amount
for which security was acquired undei the Dutch
practice was, as a general principle, that which the
plaintiff claimed. Under that practice, however,
differing in that respect from ours, a plaintiff in-
curred certain penalties if he claimed an amount
far in excess of that which was ultimately awarded
to him. It is a question whether it would not be
wise to recur to the former practice, seeing what
excessive claims are sometimes presented to the
Ct)urt for adjudication ; but until our practice is
altered the Court must retain some conttol over
the amount of security to be required from non-
resident defendants In the present case we are of
opinion that the security must be for £2 000.
Failing suoh security being given to the satisfac-
tion of the Master of the Supreme Court within
twenty-four hours, the Registrar will be authorised
to issue an interdict restraining the respondents
from alienating the property and bond previously
attached pending the decision of the action. The
costs of this application must be costs in the cause.
Mr. Justice Buchanan said : The plaintiffs, who
are net domiciled in this colony, sue the defendant,
a resident. Pefore entering appearance defendant
calls upon plaintiffs to give security for the costs
of the aotion, and also for the sum of £47,000,
which, he states, he intends to claim in reconven-
tion as damages for breach of contract. The
plaintiffs deny their liability to give any security
at all, as they are registered owners of landed pro-
perty purchased for £26,000, of which plaintiff
Symord*'s half-share is unmortgaged, but Taylor's
half- share therein is mortgaged to liis co owner for
£8,000. A previous application by defendar t to
attach plaintiffs' property in order to found
jurisdiction in an action which he proposed
16
bringing, and in which defendant intended to
make the olaim he now proposes to set up
in reconvention, was refused, as the defendant
had concealed certain material facts from
the Court as to the action taken by plaintiffs.
This matter of security to be given by litigants
is one purely of judioial practice. This practice
has been a progressive one, the true principle un-
derlying it appearing to be that justice shall not be
denied by unreasonable obstacles being placed in
the way of persons seeking redress ; while at the
same time citizens are to be secured from being
unduly harassed by unfounded claims. Thus
formerly, under the civil law, the provisions of
the law that when a person duly cited did not
appear he was liable to a fine led to a defendant
giving security, in the first place for his appear-
ance in court, and afterwards for the subject-
matter of the suit, and in turn the plaintiff was
bound to give a guarantee for the security of the
defendant. (See Voet bk. 2, lit* 5 et stq., and
authorities cited by him). These requirements
were from time to time modified, and Voet states
(2, 8, 1) that in his time security on the part of
the plaintiff had ceased to be required unless he
was a peregrinus having a foreign domicile, or was
otherwise suipectus, in which cases he would be
liable to be required to give security for the full
amount of costs, and to enter on the case in
reconvention (reconvenlione siucipienda). The
leading case in our Gouit as to when security for
costs is exigible from a plaintiff is reported as
" Witham v. Venables," 1 Menzies, 291, decided
shortly after the establishment of the Supreme
Court in 1828. The report states that the Court,
after full argument and a deliberate consideration
of all the authorities, held that no person who is
either civix municcp* or incola of this colony can,
as plaintiff, be compelled te give security for costs,
whether he be rich or poor, solvent or insolvent ;
and on the other hand that, every person who is
neither civis municeps nor incola may, as plaintiff,
be called on to give security for costs, unless he
prove that he is possessed of immovable property
situated within this colony. The report states
that the Court found that the plaintiff in that
case was an incola, and it consequently follows
that the second part of the opinion expressed in
the report was merely an obiter dictum. It is,
however, clear that the learned judge, from whose
notes these reports were collated, intended to
record the opinion of the Court on both points. I
have endeavoured, though without much success,
to discover the particulars of the case. The
plaintiff appears to have been an attorney of the
Court, but from other proceedings it would seem
likely that he was no more than nominal plaintiff,
the real plaintiff being in Bngland at the time.
This seems to explain why the Court expressly
laid down under these circumstances that the
plaintiff was to be considered an incola, and also
to suggest why an opinion was given as to the
liability of a plaintiff who had no local domicile.
The practice of the Court for upwards of sixty
years, founded on this case, has with us established
the right of a defendant to olaim security for costs
from a foreign plaintiff. It may be noticed that
the dictum in "Witham v. Venables " goes to
relieve such a plaintiff from giving security for
oosts if he be possessed of immovable property
within the Colony. This dictum was qualified, or,
at least, explained, in "Lumsden ▼. Eaffrarian
Bank " (8 Juta, 866), as meaning that plaintiff's
prep*rty must be of sufficient value. The Chief
Justice, in giving judgment, then said that there
were authorities in the civil law to the effect that
a person possessed of immovable property was
not bound te give security, but that it was quite
clear that the rule of the civil law had been
departed from in the Dutch law. A consideration
of Voet and the other commentators, however,
would show that a distinction is drawn between
what is demandable from a foreign plaintiff and
the security required from a foreign defendant,
and this seems to explain the apparent difference.
The Court did not go the length of overruling the
dictum in " Witham v. Venables." As the object
of the provision is to secure the defendant, the
Court in Lumsden's case held that the defendant
was not secured if the plaintiff's property was
mortgaged for more than its full value. And on
the same principle the Court only last August
term, in the case of " Hulbert <fc Co. v. Caporn &
Marriott," refused to order the plaintiff to find
security. There the plaintiff was not an incola,
and it was not suggested that he had any landed
property in the Colony, but as defendants
admitted their liability for part of the money sued
for, which amount was sufficient to cover their
eosts, it was held that they were not entitled to
any further security. What, then, the Court looks
to is, that the defendant shall net be left unpro-
tected when sued by a foreign plaintiff. And
this position is not assailed by the fact that the
authorities seem to recognise the right of a foreign
plaintiff who is a pauper to sue without giving any
security, or obtaining the leave of the Court, for
such a plaintiff must first establish a prima facie,
case. The right seemed to have been recognised
by this Court in 1871, in the case of " Greig 6 Co.
v. Robertson's Curators," where defendants'
application to compel a plaintiff who was not an
incola to find security for costs was stayed on
plaintiff undertaking to prosecute an application
for leave te sue as a pauper. That case, however,
does not seem ever to have got the length of a
trial. Of course, if a plaintiff is absolved from
giving security because he is possessed of im-
movable property, on any suggestion of fraud, or
that he was disposing of such property, and so
17
defeating the security thereby guaranteed, the
Court would not hesitate to interfere. But there
is no such suggestion in this case, and I am of
•pinion therefore that bo much of the applica-
tion as refers to security for costs ought not
to be granted. Bnt there remains the farther
question as to security f er any claim which defen-
dant may set up by way of reconvention. It may
be noticed that no reference is made to this point
in "Witham v. Venables," probably because in
that case no such claim was set up. The
passage cited from Veet (2, 8, 1) is open to a
construction different to that contended for by
defendant ; but I find that all the commentators
to whom I have referred recognise defendant's
right to such security. Van Leeuwen, in dealing
with dilatory exceptions, states that if the plaintiff
be a stranger the defendant may request, in
addition to costs, security "for that which the
defendant may claim from the plaintiff by way of
counter-claim." (Commentaries, bk. 5, ch. 17,
sec. 9, Ketze's Translation, vol. 2, p. 457.) Van der
Linden, in his " Judiciele Practycq " (2, 4, 4),
lays down that defendant may claim security for
the costs of the action, and for the performance of
the claim iu reconvention (om te doene reconventie).
Merula is to the same effect, "Manier van
Procederen" (4, 41, 1, 1), and the learned trans-
lator of "Van Leeuwen's Commentaries" in a
note to the passage already referred to, cites
a decision of the Supreme Court of
the Transvaal to the same effect. I
have not been able to discover any instance
where any such order has been given by this
Court. On the contrary, I find that in " Holy-
oake v. Laing " and " Horton v. Laing," in 1838,
applications for such security were made and dis-
missed ; but it is probable this was on the merits,
as no security at all was there directed, even for
ceete. But while a defendant is sufficiently pro-
tected from being unduly harassed by unfounded
claims by compelling a foreign plaintiff to give
full security for costs, or to be possessed of pro-
perty available in case of his being unsuccessful,
to compel such a plaintiff who follows his debtor
to such debtor's domicile, and sues him in his own
forum, to give security for any amount of damages
which such debtor states he intends to claim by
way of reconvention, would open the way to
the denial of justice. It is true all the old
authorities on practice already oited state
that a foreign plaintiff unable to find
security may be admitted te sue upon giving
the eautio juratoria, viz., an oath that he would
satisfy the judgment of the Court, but that would
be a security upon which in these days very little
value would probably be placed. The proper
course, I think, would be to put the defendant
in exactly the same position as he would have been
in had he instituted an action fer the damages
claimed, instead of setting them up by way of re-
convention. Before anyone could sue a foreigner,
jurisdiction would have to be established, which
may be done by arrest either of person or of
property, and as such arrest can only be by permis-
sion of the Court, the Court can determine the
nature and extent of the arrest. If, then, we
treat the defendant's application for security of
his claim in re-convention as if he were a domiciled
plaintiff suing foreign defendants, in granting that
application the Court is entitled te oonsider all
the circumstances connected with the claim,
and without in any way prejudging the case, to
determine on the nature and extent of the security
which should be given, so as on the one hand to
protect the applicant, on the other to see that
justice is not denied. It is, I think, when con-
sidering the position of a foreign defendant that
the Dutch law authorities referred to in LumsdeiTs
case lay down that even an owner of land is not
exempted from liability to give security, though,
ef course, such security may be given either by
finding sureties, or it may be by attaching pro-
perty within the jurisdiction of the Court. Under
the circumstances of this case I think it will be
sufficient to order the defendants in re-convention
to find security for the sum of £2,000, or to have
his property attached as stated by the Chief
Justice.
ATKINSON V. THE BE GIST EAR OF DEEDS.
Deed of Transfer — Registration of ordered
although a rule established in the Deeds
Office had not been complied with.
Mr. Schreiner moved, on behalf of the applicant,
that the respondent should be ordered to pass and
register a certain deed of transfer passed by James
Smith Cawood to Joshua Samuel Hitchcock
Atkinson, which deed was lodged in the Deeds
Office on the 4th December last fer registration,
and was thereafter rejected on the 6th December.
The Attorney-General, who appeared for the
respondent, read an affidavit, sworn to by the
Registrar of Deeds, from which it appeared that a
rule had been established in Deeds Office by
which a deed of transfer would not be passed and
registered unless the names of transferor's and
transferee's father were inserted therein. The
reason stated for adopting this rule was its great
practical utility, and that by means of it many
mistakes had been avoided, and errors which had
existed for years had been detected. The
Attorney-General contended that it was within the
discretion of the Registrar to make such a rule, and
that it was only one of many other rules of equal
utility which were in force in the Deeds Office,
18
The Attorney-General alto referred to the Placaats
of the 19th June, 1714, and 22nd April, 1798.
Mr. Sohreiner argued that the Registrar had no
power under the statute to make such an arbitrary
rule, and oontended that if such a principle were
admitted there was nothing to prevent the
Registrar from establishing a rule that deeds of
transfer should have attached to them the
"photos" of the transferor's and transferee's
father, mother and other relations.
The Court deferred making an order.
Pottea (January 27th) the Court made the
following order :
The Chief Justice recited the facts, and ob-
served that by Ordinance Ifo. 14 of 1844 the
Registrar of Deeds was required to register all fit
and proper transfer deeds and deeds of hypotheca-
tion. The Court was of opinion that the deed of
transfer under consideration was such a fit and
proper deed within the meaning of the statute, and
consequently that fthe Registrar onght to be
ordered to register the same. In oases in which
the Registrar could show that confusion might
ensue from not having the names of transferor's
and transferee's father inserted in the deed of
transfer the rule hitherto in force in the Deeds
Office might be applied. In the present case,
however, no suoh confusion oould arise. The
order would be granted as prayed with costs.
IN THE INSOLVENT ESTATE OF CHEISTOFFEL
VILJOEN.
Mr. Sohreiner prayed for an order confirming
the election of Mr. Harry Gibson as sole trustee
of the said estate, and to grant him full powers as
provisional trustee to liquidate the estate.
Mr. Searle, on behalf of the Uitenhage Board of
Executors, opposed the motion, and asked that Mr.
Henry Nutall Chase should be appointed co-
trustee with Mr. Gibson.
The Court ordered a fresh election ; Gibsen to
have his oosts if re-elected.
SUPRE ME COURT.
TUESDAY, JANUARY 27.
[Before the Chief Justice (Sir J. H. DE VlLLIEBS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.]
admissions.
On the motion of Mr. Molteno, Mr. Alfred
Dyasaon was admitted as an attorney and notary.
The oaths to be taken in Port Elizabeth.
On the motion of Mr. Watermeyer, Mr. S. J.
Mostern was admitted as a conveyancer.
THE GAPE OF GOOD HOPE BANK, IN LIQUIDA-
TION Y. ESTATE OF VAN LIEB.
Company — Bank in liquidation — Contributo-
ries — Application to vary list.
Mr. Searle moved in this matter for leave to
vary the list of contributories to the above bank
by placing thereon the names of the executors of
the above-mentioned estate in lieu of the said Van
Lier (deceased). It appeared from an affidavit
read by Mr. Searle that the late Mr. Van Lier had
appointed the South African Association executors
of his will, and had directed that they should hold
twelve shares in the Cape of Good Hope Bank
for the benefit of the Cape Town Ladies 1 Benevo-
lent Society, and that the dividends on the said
shares were to be paid to that society. The
liquidators were anxious to realise their legal
position as against the heirs, executors, or the
above-mentioned society, and prayed that the
executors might be placed on the list of con-
tributories.
The order was granted.
PETITION OF CABEL J. GBOOVE, J UN.
Mr. Molteno moved on behalf of the petitioner
that authority might be given to the Master to
consent to the cancellation of a bond mortgaging a
certain undivided share of the farm Drooge
Onvast, in the district of Beaufort West, and to
accept in place thereof a mortgage of a defined
portion ef such farm.
Authority granted to the Master as prayed for,
on his satisfying himself that the security will
remain sufficient.
THE CAPE OF GOOD HOPE BANK, IN
LIQUIDATION.
Company — Bank in Liquidation — Com-
promises.
Mr. Searle, on behalf of the liquidators of the
above-mentioned bank, asked for the sanction of
the Court to a compromise proposed to be effected
with one Frederick A. Searle, residing in Italy, in
respect of thirty-five shares of which he is the
registered holder.
It appeared from affidavit that Mr. F. A. Searle
was at present living in Italy, that his capital had
been invested in land in that country, settled upon
his children, and that he had made an offer of
£700 in full settlement of all claims against him
by the Cape of Good Hope Bank. The liquidators
now asked for the sanction of the Court to accept
this offer, otherwise considerable expense would
19
be incurred in attempting to recover the full
claim of £1,050.
Under the circumstances, the order wu granted
ii prayed.
JOHANNES PAULUS M08TBBT V. THE
REGISTRAR OF DEEDS.
Mortgage Bond — Cancellation — Cession —
Non-compliance with Act 3 of 1864,
Section 13. Rights of Mortgagor not
affected.
Mr. Schreiner, on behalf of the applicant, moved
for an order requiring the cancellation in the Debt
Register of a certain mortgage bond passed by
applicant in favour of one Lindenberg for £1,500,
the same having been paid.
It appeared from affidavits read that Linden-
berg, the mortgagee, had ceded the bond to the
Bank of Africa, and that subsequently the bank
had cancelled the cession.
Mr. Giddy, who appeared for the Registrar of
Deeds, contended that the respondent was justified
in refusing to cancel the deed, on the grounds that
the cession to the bank and subsequent cancella-
tion had not been stamped according to law, and
in rapport of his contention referred to Act No. 8
of 1864, section 13.
Mr. Schreiner, in reply, pointed out that the
applicant (the mortgager) had not been a party to
either the cession or subsequent cancellation, and
that he eould not be made to suffer for the lache*
of the mortgagee or of the bank.
The Chief Justice, in granting the order as
prayed for, remarked that he was clearly of opinion
that section 13 of Act No. 8 of 1864 did not apply.
The applicant had paid the amount of his bond,
and was consequently entitled to have the same
cancelled in the Debt Register, and he could not
be affected by any claim which the Government
Bight have against the mortgagee or others for not
complying with the Stamp Acts. The order would
be granted as prayed with costs.
SUPREME COURT.
MONDAY, FEBRUARY 2.
[Before the Chief Justice (Sir J. H. DE VlLLIEBS),
Mr. Justice SMITH and Mr. Justice
BUCHANAN.]
PROVISIONAL ROLL.
BOARD OP EXECUTORS V. BOUX.
In this matter provisional sentence was granted
■d the property declared executable.
SAVINGS BANK V. DE WAAL AND ANOTHER,
Provisional sentence granted for £1,200 and
interest from 80th June, 1889.
SOUTH AFRICAN ASSOCIATION V. ELLIOT.
Order discharged.
STANDARD BANK V. ROBERTSON AND BAIN.
This matter was ordered to stand over till
Thursday next.
A. OHLSSON & CO. V. DAT.
Final order for sequestration granted.
SCOTT BROS. V. HIRST.
Provisional judgment for £28 8s.— Granted.
KAUFMANN AND PATERSON V. J. J. ATKINSON.
Provisional judgment for £8 19s. 9d.— Granted. -
CLEGHORN <fc HARRIS V. W. J. HIRST.
Provisional judgment for £9 0b. 2d. — Granted.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : Meier
Gordan, Henerik Jacobus van Beden, James
Jay, Eva Allright, Johannes Lambreohts van
Niekerk, Tobias Alias Mall, Willem Sobalk van
der Merwe, Gabriel Francois Nel, Carol us
Amsterdam, Edward Thomas Fleischer, Peter
Jacobus Johannes Krummeok.
GANNON V. GANNON.
On the motion of Mr. Schreiner, the rule nisi in
this matter was made absolute, dissolving the
marriage subsisting between the parties, and
giving the plaintiff the oustody of the children and
the costs of suit.
D'ABO V. BENSON AND ANOTHER.
In this matter Mr. Melteno moved for process is
add of a judgment of the High Court to enable
execution to be levied on property of the defea*
dants beyond the jurisdiction of the said Court.
Application granted as prayed for.
PETITION OF BAREND J. J. BURGER.
Mortgage Bond — Application for cancellation
of refused where Mortgagor was executor
of Mortgagee's estate.
Mr. Sohreiner moved for an order authorising
the cancellation in the Registry of Deeds of a
certain mortgage bond passed by the petitioner in
20
favour of hi* deceased father, on the grounds that
the mortgagee intended to release him from pay-
ment thereof, hut failed to carry his intention
into effect, in consequence of his illness and sub-
sequent death.
It appeared from an affidavit sworn to by
petitioner that the bond, which had originally
been for £3,000, had at the time of the mortgagee's
death been reduced by payments to £900. The
bond itself could not be found after the mort-
gagee's death, he having presumably destroyed it,
with the intention of freeing the mortgagor from
further liability.
The Chief Justice, in delivering judgment, re-
marked that to grant the order as prayed for
would be establishing a very dangerous precedent,
as it might be an easy matter for an executor
under similar circumstances to destroy proof of
claims against himself. The order would be
refused ; but the petitioner might bring an action
if he were desirous of having the bond cancelled.
As there were minors to whom no guardian had
been appointed under the will of the mortgagee ;
Mr. Juta would be appointed curator ad litem in
the event of the petitioner bringing an action.
PETITION OP ANNA J. FOURIB.
Mr. Molteno applied in this matter for autherity
to draw a sum of money awarded to petitioner's
husband out of the estate of his deceased father.
It appeared from affidavit that petitioner's hus-
band had deserted her four years ago, and that
during this period he had not contributed to her
support, or that of the children of the marriage ;
that under the will of his father he was entitled to
£49' 6s. 8d., and the petitioner asked that this
amount might be handed over to her.
A rule nisi was granted, calling upon respondent
to show cause why half the amount to which he
was entitled in his father's will should not be paid
over to petitioner.
PETERS V. PETERS.
Mr. Jones moved to make absolute the rule nut
admitting the applicant to sue in forma pauperis
in an action against her husband for restitution of
conjugal rights, failing which for divorce.
Rule made absolute.
PETITION OF HENBT ADSHADE.
Mr. Juta applied for the appointment of peti-
tioner as curator of the person and property of his
father, Charles Adshade, alleged to be a person
of unsound mind and incapable of managing his
affairs.
The Court appointed the Resident Magistrate of
Swellendam curator ad litem, and ordered that his
evidence and that of Dx. Shand should be taken
pn affidavit.
CAMPAAN V. OAMPAAN.
In this matter Mr. Jones moved to make abso-
lute the rule nisi admitting the applicant to sue
in forma pauperis in an action for divorce against
her husband by reason of his adultery and deser-
tion.
Rule made absolute, evidence to be taken on
commission, the Resident Magistrate of Cala to
act as commissioner.
SCALLAN'S EXECUTORS V. VOOBTMAN.
Mr. Molteno applied for process in aid of a
judgment of the Eastern Districts Court, to
enable execution to be levied against property of
the defendant beyond the jurisdiction of that
Court.
Application granted.
IN RE THE BARQUE "HERA."
Ship — Arrest ad fundandam jurisdictionem.
Mr. Schreiner, on behalf of Messrs. Searight &
Co., applied for a writ of arrest against the above-
named ship.
It appeared from an affidavit of Messrs. Searight
<fe Co. that the captain of the " Hera " was indebted
to their firm in the sum of £65. A cheque for this
amount had been tendered by the agents of the
ship (Messrs. Poppe, Russouw & Co), but on
presentation at the Standard Bank it had been
referred to drawer.
The Court granted the arrest ad fundandam
jurisdictionem j the writ to be discharged on
security for £100 being given to the satisfaction of
the Master.
STURROCK V. BIRT.
Libel — Application for particulars of allega-
tions contained in libel refused, the Court
being of opinion that the charges made
were sufficiently " specific."
In this matter Mr. Juta moved for an order
directing the defendant to furnish the plaintiff
with particulars and details of the allegations
contained in the libels set forth in the declaration
filed in the suit between the parties.
Mr. Juta, in supporting the application, said
that the plaintiff objected to the general oharacter
of the accusations made against her, notably those
communicated by a certain "godly woman" and
by a " good young man." She was anxious to know
who those persons were, as well as under what cir-
cumstances, and at what times, she had committed
the offences with which she was charged.
Counsel contended that she was entitled to this
information, and in support of his contention re-
ferred to the oases of M Williams v. Shaw/' 4
*i
Buchanan, B.D.G. Reports, p. 106, and " Gourley v.
Plimsoll," L.R. 8. Ci>. 862.
Mr. Schreiner, en behalf of the defendant,
opposed the motion and contended that the infor-
mation asked for was purely of a " fishing "
character.
The Court refused the application, being of
opinion that the charges brought against the plain-
tiff were sufficiently " specifio," and that the case
of " Williams v. Shaw " did not apply. An order
was also made for the issuing of a joint commission
to take evidence in the case.
US THE B8TATE OF THE LATE JOHN QUIN.
Attachment ad fundandam jurisdictionem of
heirs interest under will.
Mr. Schreiner applied for the attachment ad
fundandam jurisdictionem of this Court of the
interest in the said estate of William Joseph Quia,
as heir of Emily Quin, in an action for an account
of the administration thereof.
Order granted attaching the property, the order
U operate as an interdict to prevent the respon-
dent from passing transfer of the property, the
order to be personally served on the respondent
and en the Registrar of Deeds.
IK THE INSOLVENT ESTATE OF BICHABD DAT.
Tne Court, on the application to Mr. Juta, ap-
pointed Mr. H. F. Bast provisional trustee.
IN THE WHITE HOUSE MINING AND DEVELOP-
ING SYNDICATE.
On the motion of Mr. Searle, the Court granted
the powers conferred by the 16th section of the
Winding-up Act to the liquidators in the abore-
aamed syndicate.
THE CAPE OF GOOD HOPE BANK, IN LIQUI-
DATION.
Liquidators' Second Report.
Mr. Juta presented the second report (annexed)
of the liquidators in the above bank, and asked
that the authority given to certain gentlemen some
time ago to inspect the books and other documents
of the bank should not be extended to the securi-
ties held by the bank.
The Court ordered the liquidators not to allow
inspection of the securities pending the receipt of
notice by the gentlemen referred to in the pre-
vious order.
THE BEPOBT.
1. The following balanoe-eheet shows the condi-
tion of the bank's affairs upon the 19th Sep tea ber,
the date of the steppage of the bank :
LIABILITIES. (DB.)
To capital paid up
Reserve fund
Contingent account
Bad and doubtful debt fund
Profit and doubtful loss account...
Surplus cash ...
Interest in suspense
Unclaimed balance
Notes in circulation
Current accounts, credit balances
Fixed deposits
Interest due on fixed deposits
Rebate on bills not yet due
Dividends unpaid
Balance due to ether banks
London and Westminster Bank
(see oontra)
Adjusting aooount
Bills payable... ... ...
Bills for collection
£175,000
60,000
17,346 15
183,828 19
15,961 6
13 16
16,220
1,060
113,262
569,568
1,343,723 16 11
24,266 19 10
72 1
687
42,203 7
8
5
3
1
7
6
4
5
9
2
214,285 14
783 7
58,164 18
193,411 8
6
8
2
£2,978,729 7 4
ASSETS.
(CB.)
£207,778 16 11
94,181 8 1
5,264 8
46,292 8 7
30,569 6 8
614,022 7 9
108,*83 11 7
28,471 11 2
230,714 16 8
By cash advanced to head office
and branches ... ... •••
Remittances in transitu
Cheques and notes of other banks
Bank premises and furniture
Properties account
Bills discounted current
Part due bills
Bills of exohange
Bills of exohange in hands of the
London and Westminster Bank
as cover for £214,285 14s. 5d. (as
per contra)...
Current accounts overdrawn
(partly secured)
Loans speoially secured
Balances due by other banks
Specie insurance account
Native gold advance account
Stamps in hand ... ...
Stationery ... ... ••• •••
Bills deposited (as per contra) ...
£2,978,729 7 4
2. On the 14th October, 1890, the official liqui-
dators presented to your honourable Court a pre-
liminary or first report, in which they asked for a
call of £80 per share, which was sanctioned by an
order of Court on the 28th October, 1890.
8. On the latter date, a payment of a dividend
of 5s. in the £ was also sanctioned, and the official
liquidators were authorised to borrow from the
Standard Bank, upon terms stated, whatever money
1,010,897
4
384,760 9
8
23,892 2
4
169 10
7
4,302
8,165 18
8
2,802 15
1
198,411 8
22
might be needed to enable them with the money
then in hand to make the above payment.
4. This dividend was notified as payable on the
18th November upon all claims proved up to the
3rd October. The great mass of claims coming in,
and the inconvenience which would have resulted
to many oreditors had the liquidators delayed pay-
ment of any portion until all could be paid simul-
taneously, rendered it advisable to pay out the
dividend in the order in which claims had been
proved. Similarly the payment of the dividend
upon all claims proved up to 80th November last
was begun upon the 15th January, and is still
being continued.
6. The date originally fixed by your honourable
Court for the filing of claims was the 30th Novem-
ber, but as considerable numbers of claims were
still unproved on that date, the official liquidators
moved your honourable Court to extend the time
to the 28th February, whioh was sanctioned.
6. With respect to the power given by your
honourable Court fer the borrowing of money
from the Standard Bank, it will be seen from the
statement below that there was no necessity for
this course, moneys having been oolleeted by the
liquidators to a sufficient amount to enable them
to pay the dividend without any further aid.
7. Upon the application of a small number of
creditors in the South African Republic, represent-
ing only a small amount of debt, the High Court
at Pretoria appointed three provisional liquidators
to take oharge of the books and assets in that
Republic. As it was considered unusual and
objectionable that such an appointment should be
confirmed, and a separate liquidation be thus
established there, the liquidators felt it their
duty to oppose this coarse. After considerable
litigation of an expensive and vexatious character,
the liquidators were placed in possession of all the
assets in the South African Republic by a judg-
ment of the High Court on the 15th November,
1890. One of the liquidators (Mr. H. J. Feltham)
proceeded to the Transvaal towards the end of
September, and is still there engaged in supervis-
ing the liquidation of the various branches in that
country. The Court required the liquidators to
choose a domicilium there, and further reserved
the question of the remuneration of the provisional
liquidators, which has since been fixed by the
High Court at the sum of £1,135.
8. The total number of claims received up to the
31st January was 6,428. The total amount of
claims proved and admitted up to the 81st of
January last was £1,929,920, and for these cheques
have been issued for the dividend of 5s. in the £,
amounting to £482,480. Other claims are still
coming in, and will have to be received up to the
28th February. Owing to the fact that " set-offs "
are still being claimed and variations made during
adjustment, the liquidators are still unable to
make an exaot statement of the total liabilities
upon whioh dividends will be payable. The
liabilities at the stoppage of the bank were
£2,152,277 ; from this there has been made up to
Deoember 81 a reduction of £110,188 for "set-
offs " or from other causes, leaving a net amount
of £2,042,189 as the estimated net liability upon
whioh dividends must be paid ; subject, however,
to further variation.
9. Up to the 29th ultimo in the Colony, and up
to Deoember 81 in London, the offioial liquidators
had received, and had to their credit at the Stan-
dard Bank, the sum of £1,033,422. The dividend
of 5s. in the £ would absorb of this an estimated
sum of £510,585. The amount of dividend war-
rants actually reported as paid up to the 29th
ultimo was £405,348.
10. There remained therefore at the date of the
last return the sum of £622,887 available for a
further dividend, being more than sufficient to pay
5s. in the £. The liquidators, therefore, now aak
the sanction of the Court to their making a further
payment of 5s. in the £, and also to their paying
subsequent dividends as the funds collected by
them from time to time will admit.
11. In their first report the liquidators estimated
the amount recoverable from the call of £80 per
share at £825,000. The amount actually received
up to the 29th January was £288,871. The
liquidators are of opinion that the amount origin-
ally estimated will prove to be nearly correct.
12. The liquidators are now engaged in taking
advice as to the proper steps to be adopted to re-
cover from former shareholders in oases where
transferees now on the list have failed to pay their
calls is full.
18. The bulk of the securities oonaist of shares
of whioh a large proportion are shares in gold-
mining companies. The liquidators have not con-
sidered it prudent in the face of a market showing
signs of recovery from an extreme and probably
undue depression to realise any large quantity of
these.
14. With referenoe to the application which was
made on the 9th December, 1890, to the Court,
by certain oreditors and shareholders, to inspect
the books and ©counts of the bank, and whioh
application was granted, the offioial liquidators
desire very resptectfully again to impress upon
the Court their conviction of the serious damage
whioh will ensue to the bank's interests if the
nature or number of the securities held by the
bank should become known, and they would again
urge in the interests of the liquidation that these
and the records of them, be excluded from examin-
ation until they have been realised.
16. It has been found necessary to consider a
number of propositions for compromise. The first
lot of 20 was confirmed by the Court on the 20th
of January. The liquidators have in hand up to
38
the present time mora than .70 farther proposals,
betides six sworn declarations of complete destitu-
tion and inability to pay anything, all of which
require, and are receiving, careful inquiry and con-
sideration.
16. The official liquidators find that the weak-
ness and ultimate cause of ruin to the bank arose
from the system of heavy overdrafts and loans en
security of scrip liable to extreme fluctuations in
value, joined with the taking of fixed deposits
to a large amount, and the absence of an adequate
reserve of gold, or of readily negotiable securities.
These advances were made to a greater or less
extent at all the branches, the largest amounts
being at Kimberley, Johannesburg, and Port
Elizabeth. Names in themselves entirely un-
worthy of credit are to be found in the books as
debtors to large amounts against scrip which is
now in many eases reduced to an enormous extent,
and in some oases has no value whatever. A
further cause appears to have been a want of
discipline in the management of the bank and a
failure on the part ef the directorate and manage-
ment in the maintenance of an effective control
over the managers of branches.
17. Many rumours having been afloat respecting
the position ef the directors in regard to the bank
at the time of its stoppage (independently of their
calls on shares), the liquidators think it right to
state that two of their number are debtors to a
large amount, and the bank is likely to be a heavy
loser on the accounts. Of one ef these it may be
said that he was a debtor in a considerable sum
before he became a director, and of the other, that
bis name and well-known connections would no
doubt have obtained, and did in fact obtain for
him, elsewhere, equal facilities for borrowing, even
bad he not been a director. The bank will net
lose money on advances or overdrafts by any other
director. On this subject the liquidators would
farther state that the report in circulation at the
time of the bank's steppage, to the effect that the
chairman had withdrawn, just before the dosing,
eonsiderable sums of money, had no foundation in
fact.
18. The liquidators have endeavoured to form
an estimate of the present value of the bank's re-
maining assets, with a view to enabling creditors
te form some opinion as to further dividends.
They regret that they have been unable to arrive
at any satisfactory result. The debts still due to
the bank are many of them of very doubtful
character, and some of them will require consider-
able time and indulgence for their ultimate
liquidation; further, the share assets are to a
treat extent of doubtful or uncertain value. If
the circumstances of the Colony generally improve,
there is no doubt that the assets of the bank will
improve with them. Upon the whole, the
liquidators would not feel justified in going beyond
a statement of their belief that a further dividend
of 5s. in the £, in instalments extending over a
considerable period, will probably be paid.
19. The liquidators beg to bring to the notice of
the Court that they have been assiduously and
anxiously engaged in the business of the bank's
liquidation (to the almost entire exclusion of other
pursuits) since their appointment, and they re-
spectfully request the Court to fix their remunera-
tion in respect of their past and future servioes.
20. The liquidators now ask the Court to sanc-
tion:
1. The payment of a second dividend of 5b. in
the £, to be payable on and after March 2 next.
2. Permission to pay subsequent dividends as
funds in hand may from time to time allow.
3. The exclusion of the share or other securities
held by the bank, or the record of them, from the
inspection sanctioned by the Court of the books
and accounts of the bank.
4. And to fix the remuneration of the liqui-
dators for their past and future services.
PHILLIPS V. PHILLIPS.
This was an action for divorce instituted by the
plaintiff against his wife, on the grounds of
her desertion.
Mr. Giddy appeared for the plaintiff, who, on
being examined, stated that he was married to the
defendant in a registry office in England on
November 7, 1878 ; that he and his wife lived
together fer about three weeks after their
marriage, when she left him and returned to her
father's house, and refused to live with him any
longer, from conscientious motives.
The marriage certificate was not produced, and
the further hearing of the case was postponed till
the receipt of the certificate from England.
DESSAUEB V. DESSAUEB.
Mr. Searle for plaintiff ; the 'defendant in
default.
Rule nisi granted, calling upon defendant to
show cause why a decree of divoroe should not be
granted.
SUPREME COURT.
TUESDAY, FEBRUARY 3.
[Before the Chief Justice (Sir J. H. DE
VILLIEB8), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
REOINA V. BBIEL.
Mr. Justice Buchanan, in reviewing this case
which had come from the Special Justice of the
24
Peace at Calitzdorp, remarked that the aooused
was charged with contravening Aot 18 of 1878,
section 2. He was engaged to accompany the
complainant on a fifteen days' journey, bnt failed
to fulfil his engagement. As the section only
applied to servants employed on farm work, or
engaged in agriculture, and as the accused had not
been so engaged and had been charged under a
wrong section, the conviction must be quashed.
IN THE MATTES OF MA BG ABET MARIA
HOB8PALL.
On the motion of Mr. Graham, the discharge was
granted under the 117th section of the Insolvent
Ordinance.
THOMAS ABTHUB ASKBW V. JOHANNES
MABTHINUS MOLLEB.
Mr. Graham, on behalf of the applicant, asked
that the rule nisi granted on the 22nd January,
1891, might be made absolute.
The Court ordered the debt to be attached,
notice of the attachment to be served on the
defendant and on the Registrar of Deeds, and to
be published in the Government Gazette, so much
of the rule nisi to be made absolute as gave leave
to the applicant to sue by ediotal citation.
BOSS V. SCOTT AND ARMSTBONG.
Partnership — Statement of account— Alleged
breach of agreement — Dissolution by
mutual consent — Counter-claim.
Mr. Searle, with Mr. Jones, appeared for
plaintiff.
Mr. Schreiner, with Mr. Castens, for the
defendants.
From the opening statement of counsel it
appeared that this was an action instituted by the
plaintiff to recover the sum of £827 1b. 10d.,
alleged to be due to him upon a statement of
partnership accounts. The declaration alleged
that the plaintiff and defendants entered into
partnership as brokers on the 1st August, 1899;
that the partnership was dissolved by mutual
consent on the 81st October, 1889 ; and claimed
the sum of £327 Is. lOd.
The defendants in their plea denied liability,
alleged that plaintiff had failed according to agree-
ment to contribute £1,000 to the partnership, and
counter-claimed for £509 0s. lid. Upon these
facts issue was joined.
Mr. Ross, the plaintiff, on being examined by
Mr. Searle, stated that he was in business in Gape
Town as a broker in July, 1889, and that his
business was a flourishing one. Towards the end
of July the defendant Scott came to him and told
him that he was very dissatisfied with Armstrong's
business capabilities, and that if he and plaintiff
were to enter into partnership they ought to do
very well ; subsequently it was agreed that Arm-
strong should continue a member of the fins.
Soott mentioned that it would be well if plaintiff
could either contribute £1,000 to the firm or find
security for that amount, as Armstrong was pre-
pared to find a similar amount. He told Scott
that he was prepared to contribute £1,000 if he
and Armstrong also put in £1,000 each. He had
scrip at that time worth about £700, and he could
have drawn upon his brother in Klerksdorp for
the balance. Witness further stated that he had
contributed £186 5s. to the firm, being the proceeds
of fifty Exchange shares sold by the firm, that he
valued his own furniture at £41 15s., and the
furniture supplied subsequently to the firm at
£82 6s. 5d. He remained in the business about
three months. During the first month the firm
had done very well, but in the second month
business began to fall off. When Scott spoke to
him about contributing £1,000 he said he was
ready to do so if Armstrong contributed a similar
amount. The boom was on, and the firm made,
according to Armstrong, £2,000 in the first month
of the partnership. When he had been in the
firm a short time he found that clients complained
of the methods in whioh business was being done.
He told Scott about the middle of October that
he would leave the firm at the end of the month.
Mr. Armstrong went te the Rand about the 21st
October on business, but he did not consider that
he would be entitled to any share in the profit
whioh might have been the result of that trip.
He was doing a very good business before he went
into partnership with Scott & Armstrong; bis
turn-over in July was £22,000.
Cross-examined by Mr. Schreiner: The turn-
over of the firm in August might have been
£182,000. He could not say when Scott first asked
him to enter the firm, but he thought it was one
day after 'Change as they were walking down
towards the jetty. He was introduced to the
manager of the Bank of Africa as a new member
of the firm, and promised to transfer his balance
from the Cape of Good Hope Bank. Armstrong
was never present when the £1,000 was mentioned.
Mr. Scott never insisted on his putting in the
£1,000. He frequently mentioned the matter, but
always said that be would pay in his £1,000 when
Armstrong had paid his. Mr. Graaff was first
suggested to him by Scott as a surety. He did
sign a document that he would be liable for one-
third of all losses sustained whilst he was a
member of the firm. He did not borrow £100
from Scott on the 81st October. He considered
that that amount was due to him.
Mr. Schreiner: Your means at present are
rather limited, Mr. Ross? If judgment ware
given against you for £500, could you satisfy it ?
2&
The Chief Justice: With what view is that
question asked ?
Mr. Schreiner : To show plaintiff's position with
regard to defendants.
The Chief Justice : I don't know what plaintiff's
present position has to do with the matter.
Mr. Schreiner : It is a matter of credibility.
Messrs. Scott & Armstrong were only too glad to
wash their hands of Mr. Boss.
The Chief Justice : The witness may be in the
most reduced circumstances at present, and may
hare been a wealthy man in October, 1889 ; so why
should you put the question now — it is utterly
irrelevant ?
Mr. Frost Bonnes, accountant, was examined
and gave evidence as to certain items in dispute.
Mr. Scott and Mr. Armstrong in their evidence
denied most of the statements made by the plaintiff.
Mr. Kirkxnan, the firm's bookkeeper, and Mr.
George Cosnett were then examined.
Upon the conclusion of the arguments of counsel
the Chief Justice delivered judgment. Ue re-
marked that there were three matters in dispute :
(1) As to whether plaintiff was liable for a third
of Armstrong's expenses to the Band ; (2) as to
whether the furniture had been fairly valued at
£33 16s.; and (3) whether plaintiff was liable to
contribute £1,000 to the firm. With regard to the
first point, the Court were of opinion that plaintiff
was a partner when these expenses were incurred,
sod therefore was liable for a third share. With
regard to the second point, they considered £88 16s.
a fair value for the furniture. Regarding the last
point, they were of opinion that there was not
sufficient evidence of an agreement tnat the
plaintiff should contribute £1,000 to the firm.
Judgment would be for the plaintiff for £117 9s. 6d.
with costs.
SUPREME COURT.
WEDNESDAY, FEBRUARY 4.
[Before the Chief Justice (Sir J. H. DB VlLLlERS),
Mr. Justice SMITH and Mr. Justice
Buchanan.]
levin v. garlick.
Interdict on money in hands of third person
—Set-off — Promissory notes not yet due —
Contempt of Court
Mr. Schreiner and Mr. Castens for plaintiff*
Mr. Searle and Mr. Molteno for defendant.
This was an action instituted by the plaintiff
against the defendant and Johnson & Co., of
Klerksdorp, for the sum of £75 7s. 8d.
£
It appeared from the opening statement of Mr.
Schreiner that on the 28th October last a rule nisi
had been obtained which operated as an interdict
to restrain defendant from paying to anyone
except the plaintiff certain moneys belonging to
the firm of Johnson & Co., but on that date in the
possession of the defendant Garlick. The money
in question (£1,588 6s. 4d.) had been handed over
to the defendant Garlick by the Commercial
Insurance Company of Cape Town, in satisfaction
of a claim by Johnson <fe Co., in respect of a policy
of fire insurance, their premises in Klerksdorp
having been destroyed by fire in August last.
It farther appeared that the defendant refused
to pay Levin his claim, and in violation of the
interdiot set off the money in his hands against
oertain promissory notes accepted by Johnson
& Co., in favour of the defendant, but not
yet dne.
Mr. Garlick, examined by Mr. Searle, stated that
he had had dealings with Johnson <fe Co., of
Klerksdorp, and in fact supported that firm. In
August last he received a wire informing him that
the premises of Johnson <fe Co. had been destroyed
by fire. A few days afterwards he received a
letter from Johnson & Co., covering policy of
insurance, and giving him instructions to pay
Levin £76 7s. 8d., as soon as he had recovered the
amount of the policy from the Insurance Company.
The Insurance Company did not pay the money at
once, as they were making inquiries into the
circumstances attending the fire. Mr. Levin
called upon him and asked him to guarantee
the payment of his debt. Witness refused
to do so unless Mr. Levin allowed him 10
per cent, on the amount for the risk he
ran. The plaintiff declined to do this and he
refused to pay him the money. On 21st Ootober
he received £1,538 6s. 4d. from the Commercial
Insurance Company, and on the following day
he received a wire from Johnson & Co., instruct-
ing him to immediately wire that firm £50 and to
retain the balance. Levin called upon him the
next day when he showed him Johnson's wire.
He then again refused to pay plaintiff on the
grounds that he had no authority to do so, but
told him that Johnson would be in Cape Town in
a few days. The interdiot was granted on the
28th October. Ue held two bonds as security
from Johnson <fc Co., one fer £700 and the other
for £600. Ue saw Johnson on his arrival, and they
came to an arrangement that the money in
witness's possession was to be set off against
Johnson's account, and that the bills were to be
returned to Johnson. Johnson was unwilling that
he should pay Levin, but he (witness) was willing
to make an arrangement with Levin. He had no
misunderstanding whatever with Mr. Levin.
The Chief Justice: There was no misunder-
standing, but you looked after yourself (Laughter.)
26
The witness further stated that he gave Mr*
Johnson £55 before the latter left Cape Town.
Cross-examined by Mr. Sohreiner : He did not
agree to pay Mr. Levin, bnt he would have done so
had it not been for the wire of the 22nd October.
He was served with the interdiet on the 28th
October. He did tell Johnson that he oould pay
no one owing to the interdict. Johnson was net
annoyed because he had not paid Levin.
Baptist Hogset, defendant's bookkeeper, was
called, and corroborated the defendant's evidenoe
respecting the interviews of Levin and Garliok
with regard to the guarantee and the giving up the
bills to Johnson.
Mr. Arthur George Syf ret proved that he, as
representing a Port Elizabeth firm, had a claim of
£215 against Johnson & Co., which he subse-
quently ascertained had been settled.
Mr. Searle then proceeded to argue in support
of the defendant's oase.
The Chief Justice : Well, Mr. Searle, your client
has been guilty of disobeying tne order of the
Court, though it is dear he had no intention of
doing Be. We shall therefore plaoe him in exactly
the same position as if he had net disobeyed the
order of Court.
Mr. Searle : Well, my Lord, if that is the oase,
the more logical course would be to oemmit him
for contempt of Court. (Laughter.)
The Chief Justice : We shall be more merciful
to year client than you seem to be. (Renewed
laughter.)
The Chief Justice, without oalling upon Mr.
Sohreiner, delivered judgment to the following
effect. The plaintiff wishing to sue Johnson <fe
Co., whioh firm was not domiciled in the Colony,
obtained an order of Court attaching money in
Garlick's possession. If at the time of the order
Mr. Garlick was entitled to set off the money
against debts owing to him the order] of Court
would not have affeoted him. But the facts are
that there were no debts due ; the promissory
notes had not yet fallen due. Mr. Garlick must
be placed in the same position as if he had paid a
third party. Judgment will be for the plaintiff
with costs.
LANE AND HOLMES AND SON V. SORENSEN,
IN BB "SAGA."
Ship — Cesser of charterer's liability —
Lien by shipowner for freight, dead freight
and demurrage — Custom of port — Case
gorerned by English law.
Sir T. tTpington, Q.C, and Mr. Sohreiner, for
appellants.
Mr* Searle and Mr. Molteno for respondent.
This was an appeal from the Court of the
Batten Districts. The oase was tried before the
Judge-President in Port Elizabeth, when the
respondent, the captain of the Norwegian barque
" Saga," sued the appellants (the defendants in the
Court below) for £862 10p., demurrage and
damages alleged to have been sustained by delay
in discharging his ship. It appeared from the
evideooe, which was very voluminous, that on the
24th of May, 1889, a charter party was entered
into at London between Messrs. Hofman, Sohenk
<fe Co., agents of the barque Saga, and Henry
Marriott, agent of Walter Lane. By the charter
party it was agreed that the Saga should proceed
to Fredrikstad, in Norway, and there lead from
the factory of Walter Lane a full cargo of timber,
and after loading, should proceed to Algoa Bay,
in this colony, and there deliver the same to the
said Walter Lane, or his assigns. The "Saga"
arrived in Algoa Bay on December 6, 1889, and on
Deoember 7 Captain Sorensen gave Lane notice
of his arrival, and ot his readiness to discharge.
On the same day Lane informed Sorensen that
Holmes <& Son were the holders and indorsees of
the bills of lading, and authorised the delivery of
the timber of them. Sorensen then gave Holmes
<fe Son notice that he was ready to deliver the
timber. Holmes <fe Son admitted that they were
the holders of the bills of lading, and accepted all
responsibility as suoh under the same. The bills
of lading were made subject to demurrage and all
other conditions as per charter party. It appears
that just at this time there was an unusually large
number of ships awaiting discharge in Algoa Bay,
and that the boating companies had great difficulty
in coping with the work, in consequence of which
the " Saga" was net discharged till 11th March, 1890.
On the 18th October, 1890, by consent and request
of parties, judgment was entered for the re-
spondent for £188 10s. and costs. From this
judgment the appellants now appealed.
The arguments are sufficiently set forth in the
judgment, whioh was delivered on the fallowing
day.
SUPREME COURT.
THURSDAY, FEBRUARY 6.
Before the Chief Justioe (Sir J. H. DE
Villiebs), Mr. Justice SMITH, and Mr.
Justioe Buchanan.
LANE V. SOBENSEN.
The Chief Justice, in giving judgment, said :
This was an action for demurrage brought in the
Port Elizabeth Circuit by the master, on behalf
of the owners, of the barque " Saga" against the first
defendant, Lane, as charterer of the vessel, and
27
the second defendant, HolmM, as reoeiver of the
cargo under a bill of lading. The charter party
contained the following provisions : " Cargo to be
brought alongside and taken from alongside at
the charterer's and consignee's risk and expense.
To be discharged as fast as the custom
of (he port will allow, and ten days on demurrage
over and above the said lying days at 4d. per ton
register per day. . . . This charter being
entered into by the charterer as agent for others,
his liability shall cease as soon as the cargo is
shipped, bat captain to have a lien upon the cargo
for all freight, dead freight, and demurrage.
.... The words demurrage and all other con-
ditions as per charter to be inserted in the bills of
lading. The ship to be addressed to Mr. W. Lane,
Port Elizabeth, paying 2$ per cent, commission on
the gross amount of freight." The vessel arrived
in Algoa Bay on the 5th of December, 1889, and
on the 7th of that month the plaintiff gave notice
of her arrival to Holmes, and asked him to give
her a quick despatch. On the 23rd of December
the first defendant wrote as follows to the plaintiff :
U I, the consignee of year ship, the " Saga," hereby
authorise yon to deliver your cargo of deals, Ac,
to Messrs. T. Holmes A Sen (the second defend-
ant), of this town, and hold yon harmless from
any louses occasioned by your so doing, instead of
to myself." The discharge of the cargo was
commenced on the 16th December, 1889, and was
completed on the 27th of February, 1890. The
plaintiff, in his declaration, alleged that, according
to the custom of the port, the vessel could with
ease have been discharged before the 21st of
January, and claimed the sum of £362 10s. as
demurrage. The case was heard before Sir J.
Barry at the Port Elizabeth Circuit Court. The
first defendant pleaded in effect that his liability
had ceased y according te the provisions of the
charter, as soon as the cargo was shipped, and
that, as he was only the addressee of the ship and
not consignee of the cargo, no further liability
attached to him. The second defendant, while
admitting that he was the holder and endorsee of
the bill of lading, and had accepted all responsi-
bility as such, and that the bill of lading was
made subject to the demurrage and other condi-
tions of the charter, put the plaintiff to proof that
Marriott, the nominal charterer, was the agent of
the first defendant. Both defendants denied the
allegation that the cargo had not been discharged
as fast as the custom of the port would allow.
The Court decided against the defendants on all
grounds, and gave judgment against them for
£198 10s., being demurrage for twenty-six days
from the 1st of February, 1890, at £7 6s. per day.
Against this judgment the defendants appealed,
but owing to the insolvency of the second
defendant his appeal has fallen to the ground, and
the liability of Lane alone remains to be con-
sidered. The main question raised on appeal is
whether, assuming that demurrage was payable,
the appellant is liable to pay it in whole or in
part? The learned judge held that until the
cargo was shipped both Marriott and Lane were
liable, but that inasmuch as Marriott was the
agent for Lane his liability ceased and that of
Lane continued as charterer. " I cannot think,*'
he adds, " that it was ever contemplated by the
owners to abandon the claim which the law gave
them against the undisclosed charterer." It is
unnecessary, in the view whioh I take of this
case, to consider the law relating to the liability
of undisclosed principals, because, in my opinion,
the object of the cesser clause was to release the
charterer, whoever he might be, from liability.
To apply the language of Lush, J., in "Chris-
toffersen v. Hansen " (L.R. 7, Q B. 609), the lien
given to the shipowner on the cargo for demurrage,
as well as for freight, was an equivalent advantage
for absolving the charterer altogether. The
charter states that it was " entered into by the
said oharterer as agent for others,'* and because
the only person whose name appears on the charter
party as- oharterer is Marriott, it is contended that
his principal, although oharterer, was net intended
to be released from liability for demurrage as soen
as the cargo was shipped. But, for the purposes
of the charter party, Marriott and Lane were
really one and the same person, and the others for
whom Marriott, as representing Lane, was agent
was the intended consignee of the cargo, viz.,
Holmes. His firm imported the timber, of which
the cargo consisted, through Lane, who employed
his London agent to enter into the charter party
for him. Any benefits, therefore, intended to be
given to the oharterer were intended for Lane
equally with Marriott. Certainly the reason
which have induced the Knglish Courts to absolve
, the charterer in several cases under the ordinary
cesser clause would equally apply where that
clause is prefaced by the statement that the
charter is entered into by the nominal charterer
as agent for others. I quite agree with the view
that in the decision of this oase the Court should
be guided by the English law, and 1 therefore
proceed to refer to a few of the English oases. In
" Bannister v. Breslauer " (L.R 2, C.P. 497) the
oharter party contained the following clause:
u The charterer's liability on this charter to cease
when the cargo is shipped, provided the same is
worth the freight en arrival at the port of
discharge, the captain having an absolute lien on
it for freight, dead freight, and demurrage, whioh
he, or owner, shall be bound to discharge." It was
held by the Court of Common Pleas that the plea
that the cargo was worth the freight on arrival at
the port of discharge was a good answer to an
action by the shipowner against the charterers for
delay in loading the vessel. All the judges laid
28
strew upon the circumstance that the charter gave
a lien upon the eargo for demurrage, and Keating,
J., added : " I do not think it is straining the
language of the charter party to say that the
charterers meant to free themselves from all
liability, in respect of which the plaintiff would be
obliged to have recourse to an action upon the
charter party." In " Franceto v. Massey " (L.R.
8, Ex. 101), a charter party made by the plaintiff
to the defendant contained the following
olause : "Charterer's liability to cease when
the ship is loaded, the captain having a lien
upon the cargo for freight and demurrage." It
was held that the lien extended to demurrage
at the port of loading as well as at the
port of discharge, and, as a consequence that
the ship having been loaded, the charterer could
not be sued for demurrage incurred during the
loading. Bramwell, B., referred with approval
to the reasoning of Lush, J., in the case whioh I
first cited and added : " And so he holds liability
for freight is given up but not liability for
damages from delay in loading, because there was
a lien for freight but none for such damages." In
the present case much stress was laid by the Court
below on the argument that Lane was consignee
of the cargo as well as charterer of the ship. " In
the absence of any other evidence," said Barry, J.,
" Lane, the addressee and charterer, must be
assumed to be the consignee. This character,
moreover, Lane does not repudiate when
addressed as such. Nothing could be a clearer
admission by Lane that he was consignee than
when on December 28 he addressed the plaintiff
by letter," in which he refers to himself as con-
signee. I do not find among the correspondence
produced any letter addressed to Lane as consignee
to whioh this letter of December 23 is an answer.
In this letter Lane speaks of himself as "consignee
of the ship" and not of the cargo, and it is quite
possible that he used the term in the loose sense in
which it is often employed as meaning the person
to whom the ship has been addressed. But even
if he meant to say that he was the consignee of the
cargo, the admission ought not to be pushed against
him further than the actual facts would justify.
In fact, according to the evidence of Forbes,
which is uncontradicted, the bill of lading came by
post, and was sent by Marrlett through the bank
to Lane. Lane notified to Holmes (the second
defendant) that the bill of lading was at the bank
and that Holmes was to provide for the payment
of the draft whioh Marriott had drawn against the
bill of lading. Taking this evidence in connection
with the fact that Holmes had ordered the timber
through the agency of Lane, it is difficult to hold
that Lane and not Holmes was the real consignee
ef the cargo. Even if he was consignee it wonld
not follow that he is liable in an action brought
against him solely as charterer. An instructive
case upon this point is that of " Sanguinetti v.
Pacific Steam Navigation Company (L.R. 2, Q.B.
Div., 238) which is not referred to in the learned
judge's reasons. That was an action for demurrage
against a charterer who was also consignee of the
cargo. The defence was that the liability of the
defendant had ceased on the loading of the cargo.
This defence was sustained, and it was held there
was a lien for demurrage, that therefore the oesser
ef liability olause applied, and that the fact that
the defendant himself was consignee as well as
charterer made no difference in the construction
of the olause. The case is a very strong one,
because the defendant's agent had himself re-
quired the plaintiff to deliver the cargo without
enforcing his lien for demurrage. Mr. Benjamin,
as counsel for the shipowner, pointed eut that the
case differed from all others reported on the
subject inasmuch as in other cases the charterer
and consignee of the goods were different
persons. " The general custom," he said, " is fer
the merchant abroad to employ a correspondent in
England to charter the ship and consign the goods
to him. The charterer has no interest in the
matter after the 6hip has sailed. But here the
charterers and consignees are the same persons,
and they stipulate that instead of paying the
freight and demurrage and other charges in
England, their agent, who will receive the goods,
shall settle them at Callao. The lien on the cargo
was only a collateral security, and the plaintiff
can give that up without giving up his right to
the debt." The Justices of Appeal, however, were
not convinced by theBe forcible arguments. " In
my opinion," said Hellish, J. A., " according to
the true construction of the charter itself the
defendants were free from all liability on the
ship's sailing after it was fully loaded. In my
opinion the liability did not revive merely because
no settlement was arrived at * ith the charterer's
agent, and the shipowner ought to have enforced
his lien." Brett, J. A., said : " I come to the con-
clusion that in this charter party there is a lien
for the detention of the ship at the port of loading.
There was therefore a right of lien in the hands
of the captain upon this cargo in respect of the
claim for detention. If that be so
the absolving clause here, unless it is to be dis-
tinguished from the absolving clauses in other
charter parties in former cases, will clearly, accord-
ing to the authorities, absolve the defendants from
any claim in respect ef any detention at the port
of leading." In the present case the detention
was at the port of discharge, but the principle
applicable is the same. The action proceeds upon
the assumption that it would have been possible to
discharge the cargo with greater despatch than that
which was shown. When it appeared that the
cargo would not be discharged within a reasonable
time the plaintiff might have landed it himself,
29
and thus retained his lien for demurrage. What-
ever action he may have against the first defendant
on other grounds, he has no action against him for
demurrage under the charter party. Ab charterer
he is absolved from liability for demurrage at the
port of discharge. If he is not liable as charterer
he can only be liable if he claimed and reoeived
the goods under the bill of lading. His letter of
the 23rd December may or may not amount to a
guarantee for demurrage, but the action does not
proceed on that ground. Nor does that letter show
that he ever claimed the goods as consignee. The
true explanation of the letter appears to me that,
owing to the defective form of the bill of lading,
the captain required an indemnity for delivering
the goods to the holder of the bill ef lading. But
whether this explanation be the correct one or not,
we have the uncontradicted evidenoe of the
appellant that he had no interest whatever in the
cargo as consignee, and that he had no connection
with the defendant Holmes except as charterer,
through Marriott, of the ship. The fact that he
afterwards made common cause with Holmes in
the defence of the action, or that his attorney
made use of expressions in the correspondence
placing him on the same footing with Holmes,
cannot alter his legal position. As charterer he
hat, through his agent, stipulated to be relieved
from liability for demurrage, and he has never
taken upon himself the liability of consignee by
recti v ng the goods. Under these circumstances
it becomes unnecessary to consider whether
demurrage was payable at all. That is a question
of fact, depending, however, not upon the
credibility of the witnesses, but upon the correct-
ness of the inferences drawn by the Court below
from facts which in the main are undisputed.
Prima fade the detention of the Bhip was
onreas nably long, and I certainly think tbat the
onus lay up *n the party who would be responsible
for demurrage, if any, to explain the delay and to
prove that he had employed all the usual methods
of despatch according to the custom of the port of
Algea Bay. Upon this point very strong evidence
was given for the defendants, but I prefer to rest
my judgment upon the preliminary objection
raised on behalf of appellant. For the reasons
aheady stated his appeal must be allowed, with
eosts in this Court and in the Court below.
DE KLERK V. DE KLERK.
Mortgage Bond — Provisional sentence post-
poned where Mortgagor had denied his
signature.
8irT. Upington, Q.C., prayed for provisional
judgment on a mortgage bond for £3,000.
Mr. Juta, on behalf of the respondent, opposed
the motion, on the ground that the respondent
denied his signature, and asked that the matter
might stand over for fourteen days.
Counsel having agreed that the evidence of one
of the witnesses to the bond, Mr. J. D. Cilliers,
should be taken on commission, the matter was
postponed for three weeks.
WESTERN PROVINCE BANK V. MALHERBE.
On the motion of Mr. Molteno, final adjudica-
tion of this estate was granted.
STANDARD BANK V. BOBEBTSON AND BAIN.
Mr. Schreiner, on behalf of the Standard Bank,
moved for the final adjudication of the firm's
estate.
Mr. Juta, who appeared for the executors of
Bain, argued at great length that Bain had ceased
te be a partner of the firm in 1888, and directed
the attention of the Court to an agreement made
in that year for dissolving the partnership, and to
a subsequent agreement made in 1889, varying in
some respects the terms of payment of Bain's
share of the assets.
Mr. Schreiner contended that Bain had never
ceased to be a member of the firm, and in support
of his contention called the attention of the Court
to the record of a case tried in the Supreme Court
some time before Bain's death, during the hearing
of which Bain admitted that he was at that time a
member of the firm.
The Court made absolute the rule applied for
with costs. Sequestration only ordered as to the
estate of the firm.
IN THE INSOLVENT ESTATE OF BOBEBTSON
AND BAIN.
On the motion of Mr. Schreiner, Mr. Herbert
Wilman and Mr. John Watson were appointed
provisional trustees.
LIQUIDATOBS CAPE OP GOOD HOPE BANK V.
HENRY HEATH.
Mr. Schreiner applied for the final adjudication
of the defendant's estate. — Application granted.
LOUW AND CO. V. J. J. THEBON.
On the motion of Mr. Webber, provisional judg-
ment was granted for £264 12s. 8d.
BEHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : John Smith
and Charles William Wallace,
80
PETITION OF ADA EMILY PETERS.
Mr. Jones applied, on behalf of the petitioner,
for the issue of a commission appointing the Resi-
dent Magistrate of St. Mark's to take petitioner's
evidence in the suit instituted by her against her
husband for restitution of conjugal rights, failing
which for divorce.
PETITION OF ELEANOB G. W. HTLAND.
Mr. Searle appeared for petitioner ; Mr. Molteno
watched the proceedings on behalf of petitioner's
brother-in-law.
Mr. Searle asked for the appointment of peti-
tioner and Mr. William Thome as curators of the
estate of petitioner's husband, James 6. L.
Hyland, who, it was alleged, is unable, through
defective mind, to attend to his affairs.
The Court ordered that a summons should be
issued in the ordinary course, calling upon the
husband to show cause why his estate should not
be placed under a curator. Mr. Graham was ap-
pointed curator ad litem.
PETITION OF HENRY H. OLIVIER AND OTHERS.
Mr. Searle moved for authority to the Registrar
of Deeds to pass transfer to petitioners the
remainder of the farm Heimer's Rivier, the same
having been purchased by them but not trans-
ferred by reason of an error.
The necessary authority was given.
THE UNION BANK, IN LIQUIDATION.
Securities in possession of Bank — Refusal to
realise — Legal rate of interest.
Mr. Schreiner presented the following petition
from the liquidators of the above-mentioned
bank : That the Standard Bank of South Africa
were, at the date of the winding-up order of the
Union Bank, creditors of that institution for the
sum of £219,060 or thereabouts, which has been
reduced in various ways to a sum of £146,420,
exclusive of interest. The Standard Bank
holds the bulk of the securities of the • Union
Bank as security for the due repayment to them of
the Union Bank's indebtedness. These securities
consist chiefly of promissory notes and bills of
exchange, with scrip attached, upon which
Wilhelm August Lippert and other insolvent
persons are liable. The Standard Bank has
not proved any claim against the estate of
Lippert or the other insolvents, for the reason
that they say they hold the great bulk of their
securities merely as collateral security for the
indebtedness of the Union Bank, and that they do
not therefore consider it incumbent te prove for
these securities, as they are satisfied the Union
Bank will be able to pay 20s. in the £. That the
Standard Bank refuses to hand up for realisation
to your petitioners the securities held by them
and received from the Union Bank until their
claim is paid, or unless some satisfactory arrange-
ment is entered into. That it is impossible to
satisfy the claim unless your petitioners are in a
position to deal with the securities held by the
bank, a large proportion of whioh are attached to
paper bearing the name of A. Beit, which are
alleged to be. forgeries, and your petitioners are
also unable to take proceedings to test the validity
of the debts due by virtue of the alleged forged
bills. That your petitioners are of opinion that
they could not force the Standard Bank either to
hand up the securities for realisation or to teat
the validity of the alleged forged bills ; that for
the above reasons, the liquidation of the Union
Bank is retarded and delayed. That your peti-
tioners and the manager of the Standard Bank
have discussed the matters referred to in the
premises, and the manager has written your
petitioners as follows : " For the purpose of
facilitating the liquidation, and in the interest of
all concerned, this bank is willing that an order of
Court should be obtained in the following terms :
(a) That the liquidators of the Union Bank be
authorised to take ever from the Standard Bank
all the bills discounted for the Union Bank, and
the shares and other securities in connection
therewith. (6) That the liquidators shall realise
the said bills and securities, and shall account to
the Standard Bank for the proceeds in account of
their olaim ; any deficiency on such olaim,
whether in the bills discounted with the Standard
Bank by the Union Bank, or otherwise, shall be
paid to the Standard Bank in due course by the
Union Bank (in liquidation), with interest at
five-and-a-half per cent.; the Standard Bank to'
be paid dividends at the same rate as other
creditors upon their claim, less agreed value of
securities, such agreed value to be subject to
adjustment hereafter." The petitioners are of
opinion that it will be to the interests of all con-
cerned in the Union Bank if the Court would
sanction such an arrangement.
Mr. Schreiner pointed out that if this arrange-
ment were sanctioned by the Court it would be to
the benefit of the contributories.
The Chief Justice : The arrangement seems just
aa much to be for the benefit of the Standard
Bank. He thought that the interest might be
reduced considering that the Standard Bank was
so satisfied that the Union Bank would pay 20s.
in the £. He was not sure that the Standard
Bank could not be compelled to realise the
securities or hand them over. Pledgees under the
Roman-Dutch law stood tn a different footing to
31
what they did by the law of England. Six per
cent, was the rate of interest usually allowed, bat
then was no authority for laying that 6 per cent.
was the legal rate of interest in this country.
The Court would not sanction the arrangement
unless the bank consented to reduce the proposed
interest from 5& to 6 per cent. The other question
was a very important one, as to whether the
bank could not be compelled to realise or hand
over the securities to the liquidators te realise,
and he would like to hear it argued before they
gave any decision upon it. The present applica-
tion would be taken as ratified, provided interest
were reduced to 6 per cent.
KOTZEE V. KOTZBE.
Mr. Molteno for plaintiff ; Mr. Graham for
defendant.
Decree of judicial separation granted, costs to
be paid out of the joint estate.
SUPREME COURT.
TUESDAY, FEBRUARY 10.
Before the Chief Justice (Sir J. H. De VlLLIEBS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.
THE PAABL BANK, IN LIQUIDATION.
Company — Bank in liquidation — Winding-tip
Act — Absconding contributory — Powers of
liquidators in such cases.
Mr. Sohreiner, who appeared on behalf of Mr.
L. ran der Byl, moved that leave might be given to
the applicant to proceed to Bngland by the R.M.S.
Athenian. It appeared from the statement of
Mr. Schreiner that the applicant is on the list as a
contributory to the above bank, that he had made
satisfactory arrangements for meeting the claims
of the bank against him, and that he had applied
to the liquidators fer their consent to his going to
Bngland, but that they had refused to grant their
eonsent until application had been made to the
Court.
The Chief Justice : What have we to do with
Mr. Van der Byl's going to Bngland ?
Mr. Schreiner pointed out that under the Wind-
ing-up Act powers were given to the liquidators
to have an absconding contributory arrested. In
this ease, however, there was no question of
absconding. Mr. Van der Byl was leaving with
the full knowledge of the liquidators, and had
made arrangements to meet any claim made
against him in his absence, but as the liquidators
were anxious, before giving their consent to
obtain the sanction of the Court this application
had been made.
Sir T. Upington, Q.C., who appeared for the
liquidators, did not oppose the application.
The Chief Justice : No order will be made, as
the application is an unnecessary one. If the
liquidators are of opinion that a contributory is
about to abscond it is for them to put the
machinery of the law in motion.
HTLAND V. HYLAND.
De lunatico inquireodo.
This matter was before the Court on Thursday
last, when an order was made for the issuing of a
summons oalling upon the defendant to show
cause why he should not be declared of unsound
mind and incapable of managing his own affairs.
The oase now came on for hearing.
Mr. Searle appeared for the plaintiff, Mr.
Graham for the defendant as curator ad litem, and
Mr. Molteno watched the proceedings on behalf of
the defendant's brother.
Mrs. Hyland (the plaintiff), called by Mr.
Searle, stated that she waB the wife of the defend-
ant, Mr. James Hyland, and had been married
about nine years, there being two children of the
marriage. Her husband was a shipwright. About
twelve months ago she for the first time
noticed something peculiar about her husband,
and during the past six months he had been
getting worse. He was not violent, but his
memory was very defective and at times he paid
no attention to anything going on around him ;
though sometimes he talked most rationally. She
was of opinion that in his present position he was
incapable of managing his own affairs.
Mr. Graham informed the Court that he had
had a prolonged interview with Mr. James Hyland,
and although the latter appeared to be very rest-
less in his manner and decidedly peculiar, still his
memory appeared to be fairly clear upon some
points, and he (Mr. Graham) could not consent to
the defendant being declared of unsound mind,
though he had no objeotion to a curator bonis
being appointed.
Mr. Molteno, in cross-examination, elicited from
the plaintiff that all tne correspondence which had
passed between her husband and his brother had
been written by her husband.
Dr. Alexander Abercrombie, examined by Mr.
Searle, stated that he /had known Mr. Hyland
about eight years, during which time he had
enjoyed good health up to about five or six months
ago. He had examined the defendant recently
and found him restless, stupid and dull, and his
32
memory very deficient. He was of opinion that
defendant was not capable of managing his own
affairs. He attributed defendant's mental weak-
ness in a great degree to drink.
Dr. Schultz corroborated Dr. Abercrombie's
evidence with regard to Mr. Hyland's mental
condition. The first time he was called in to see
Mr. Hyland he was of opinion that the defendant
was suffering from acute mania.
The defendant was then called, and said he
wanted someone to look after his affairs as he
sometimes felt unwell.
The Court found the defendant mentally unfit
to manage his own affairs, and appointed Mr. B. R.
By fret curator bonis, the defendant to have leave
at any time to have the appointment set aside
upon showing cause.
BEVEBN'S EXECUTORS V. ELY.
Balance of account — Action — Disputed items.
Mr. Schreiner and Mr. Jones for the plaintiff.
The Attorney-General and Mr. Watermeyer for
the defendant.
This was an action to recover the sum of
£62 178. 6d., balance of account alleged to be due
by the defendant.
Mr. Schreiner, in opening the case, stated that
the plaintiffs were the executors testamentary of
the late Henry Be vera, and that they carried on
the business of the deceased as furniture ware-
housemen and upholsterers in Gape Town, and
that the defendant was a livery-stablekeepe r
living in Rondebosch, and was formerly proprietor
of the Fountain Hotel, Pretoria. Defendant had
transacted business with the firm for some three
years or thereabouts, and in 1890 there i was a
debit balance against him of £243 2s. In April,
1890, the defendant paid by cheque £180 4s. 6d.,
leaving the balance of £62 17s. 6d. which was now
sued on. The defendant pleaded that the £180 4s.
6d. paid by him in April last was in full settlement
of his account. He further disputed several
items in the account rendered by the plaintiffs,
and counter-claimed for £61. The principal items
in dispute were as follows: (a) £25 12s., advertise-
ments inserted in the Cape A rgus and subscriptions
to that paper, which had been paid for by the
plaintiffs on behalf of the defendant ; (6) £21,
being for repairs to billiard- table cushions, also
paid for by plaintiffs ; (c) £10, cash advanced ;
\d) £6 6s. 6d., sundries.
Mr. Glement Modlin Gibbs, called by Mr.
Schreiner, stated that he was one of the executors
testamentary under the will of the late Henry
Severn, and one of the plaintiffs in the present
suit. The firm supplied defendant with furniture
1211887,1888, and 1889. He did not personally
sell any of the furniture ; he kept the books, and
did the correspondence. He remembered receiving
an order from Mr. Ely for a billiard-table. The
firm's agent in London was instructed to buy the
table and ship it by the first steamer. On the
arrival of the table it was forwarded to Mr. Ely.
No trade profit was charged, only a commission of
5 per cent. Mr. Bly at first declined to .take the
table on the grounds of its being too dear. When
another purchaser had been found, Bly consented
to take the table, and no complaints were made
about it. The olaim of £21 was for repairs
executed to billiard-table cushions at the request
of the defendant. On the authority of the defend-
ant, advertisements were inserted in the Cape
Argus, and subscriptions paid for that paper. He
saw Ely in November, 1889, and referred to the
amount paid to the Argus Company, when defend-
ant told him to try and reoover the amount from
the Fountain Hotel Company, Pretorir. Some
time previous, when he had heard that defendant
had sold the Fountain Hotel, he had written to
Ely to know if the advertisements in the Argus
were to be continued, but had received no reply,
and in consequence had continued the advertise-
ments. The £10 had been paid to defendant in
witness's offioe.
Cress-examined by the Attorney-General : He
took no personal part in selling, but his partner,
Mr. Alfred Be vera, could of course reduce the
price at which an article was marked. No trade
profit was made on the billiard-table, and the com-
mission of 6 per cent, was subsequently abandoned,
on defendant's complaint that the table was too
dear. He never made any agreement to make
good defects whioh might exist in the table. It
was one of Thurston's, and he considered that
quite sufficient to ensure its being a good table.
The £21 charged for repairing the oushions was
fair and reasonable. The £10 paid to Mr. Ely was
handed over in his presence to Mr. Rankmore.
He left for England on July 8, 1889.
Mr. Alfred Bevern, who corroborated the evi-
dence of the last witness, denied that he had met
defendant in August, 1889, or spoken to him on
the subject of the cushions.
Mr. Herbert Edward Riches stated that he was
the manager of Thurston's business in Cape Town.
Shortly after he opened cushions were sent to him
for repair. The cushions had been very badly
used. Mr. Ely came to his store, and asked if his
oushions were ready. The charge of £21 was
moderate, and was much less than would have
been charged if they had been sent to England.
William Edward Ely, examined by the
Attorney-General, stated that he told the plaintiffs
(Gibbs & Bevern) that if he could not get a
billiard-table from Peach & Co., of Kimberley, he
would give them an order for one on their under-
taking te supply any defects whioh might be found
391
in the table. When the table was
unpacked it appeared to be in good order, bat
afterwards hie customers complained that the
cushions were too hard and refused to play matches
on it. He never allowed his guests to sleep on his
buliard-table. He sold his hotel in February,
1889, and acquainted plaintiffs with the fact. He
arrived in Cape Town in June, 1889, and went to
tee Mr. Bevern on . the same day. Mr. Severn
told him that the cushions had not yet arrived.
Some time afterwards he met Mr. Bevern and he
told him that the cushions had been mislaid, but
that he would have them repaired at his own
(Bevern's) expense. He had paid Mr. Bevern £10
to pay for two tables which had been bought from
Mr. Stigant. In March, 1890, on receiving a
statement of his account, he had offered Mr.
Bevern £180 4s. 6d., in full settlement, but this
offer was declined, but subsequently accepted, by
Mr. Bevern, who came out one morning to see him
at his house in Bondebosch. — Defendant's wife
and son were then called, and corroborated defend-
ant's statements with regard to the billiard-table
and cushions.
After having heard the arguments of counsel,
the Chief Justioe remarked that the defence had
broken down on every point, and gave judgment
for the plaintiffs for the full amount claimed with
ootts.
SUPREME COURT.
WEDNESDAY, FEBRUARY 11.
[Before the Chief Justice (Sir J. H. DE ViLLIERS),
Mr. Justice SMITH, and Mr. Justioe
BUCHAHAN.]
BBQI9A V. KIYIKT MAN EL.
Venue — Change of.
On the application of Mr. Giddy, leave was
granted to have the accused tried at the Circuit
Court, to be held at Beaufort West next month,
for contravening section 16, sub-section 2, of Act
19 of 1861, for attempt to murder and for hone-
breaking.
WBIGHT V. WILLIAMS.
Fraud and misrepresentation — Principal and
agent — Principal's authority exceeded by
agent. Postponement owing to absence of
important witness.
8ir T.
Upinrton, Q.CL for the plaintiff; the
t in default This was an action for
damages on the ground of the defendant's fraud
and misrepresentation.
James Adam Wright, called by Sir T. TJpington,
Q.C., stated that he was the holder of a mate's
certificate. In October, 1889, he was engaged by
Captain Williams, the defendant, on behalf of the
firm of De Pass, to proceed with him as mate on a
sealing expedition. He (the plaintiff) was to
receive as payment £6 per month when em-
ployed as mate, £4 per month when sealing,
4d. a skin for every seal killed, and 16s. a tun on
the oil obtained ; these last two items being known
in the sealing expeditions as *' lay." He noticed
that the lay was not referred to in the articles, and
in consequence he refused to sign them, but on
Captain Williams assuring him that it was net
customary to enter the lay on the articles, and
that he would receive his lay all right, he signed
the articles. On his return from the sealing trip,
he put in a claim for £71 10s., which Captain
Spenoe, as De Pass's agent, refused to pay. He
then brought an action against De Pass, but only
got judgment for £28 10s. Subsequently De Pass
tried to sequestrate plaintiff's estate, but the
application was dismissed with oosts, whioh had
not been paid.
By the Court : Both before and after he signed
the articles, Captain Williams told him that it
was not customary to enter the lay on the articles.
He had served five months, four-and-a-half of
whioh had been spent in sealing.
William Quine stated that he lived in Cape
Town, and that he knew the defendant, Captain
Williams, by whom he had been asked in October,
1889, to engage a mate. He spoke to plaintiff, and
told him what the lay would be. He was present
at the shipping office when the articles were signed,
and heard Captain Williams tell plaintiff that he
would get his lay all right, although it had not
been inserted in the articles. The usual lay
allowed to a mate was as 6tated by plaintiff ; an
ordinary seaman would only receive half-lay.
Captain Williams had been up the coast for the
past five months, but before he left he told
witness that he had received the summons in
this case.
Captain William Peterssen stated that he had
been formerly captain of the Sea Bird, but that
Captain Williams had got command during his
illness. It was customary to give a lay to those
engaged in sealing. He was still in the servioe of
De Pass, but did not know if he would have to go
to sea again.
In answer to the Court : The lay had nothing to
do with the shipping office, and was not, as a rule,
entered on the articles. If he had engaged
Wright, he would only have given him Sd. per
skin, and 7s. 6d. per tun of oil. Witness further
stated that, although this had been Wright's first
sealing trip still he would have been entitled to lay.
34
Mr. Attorney H. P. dn Preez proved that the
taxed cests of defendant in the case of Wright v.
De Pass amounted to £62 lis. 8d., his own wit-
nesses* being £80 Is. 6d., which had been reduced
to £50.
The Chief Justice at this stage intimated that
it would be very desirable to have Captain
Spence's evidence, and if possible Captain
Williams's.
Sir T. Upington, Q.C., concurred, and the case
was postponed for further hearing until the
arrival of Captain Spenoe in Cape Town.
SUPREME COURT.
THURSDAY, FEBRUARY 12.
[Before the Chief Justice (Sir J. H. DE
VlLLlERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
PROVISIONAL ROLL.
GAPE OF (SOOD HOPE BANK V. ROBERTSON.
Provisional judgment on two promissory netes,
one for £400 and the other for £626, granted with
interest from 1st July and 1st August, 1890,
respectively.
JACKSON V. CUTTING.
Mr. Searle for plaintiff, and Mr. Juta for
defendant. — On the application of Mr. Searle, the
matter was allewed to stand over for a week.
COLONIAL GOVERNMENT V. MOBGENBOOD.
Provisional judgment granted for £27, less
£6 16s. 6d.
t REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted: Arthur
Robert Kyffin, Guttav Steffeck (released from
sequestration), AlbertUB Johannes Wilhelmus
Pretorius Nel, and Carl Fisher.
THE PETITION OF EDWABD B. A. GIBBON.
On the application of Mr. Graham, an order was
granted allowing petitioner to continue his articles
of clerkship with Mr. Gus. Trollip, attorney-at-law
and notary public, notwithstanding an interval of
non-service between 26th March, 1889, and the
present date.
TEENGS Y. GABLICK.
Evidence — Commission de bene esse.
Mr. Schreiner appeared for the applicant, and
Mr. Searle for the respondent. This was an
application for the issue of a commission to take
the evidence of a witness for the plaintiff, which
witness, Mr. John William Johnson, is at present
residing in Klerksdorp, in the South Afrioan
Republic. — The Court ordered a commission de
bene esse to be issued ; the plaintiff, however, to
use every endeavour to procure the attendance of
the witness at the trial, otherwise the expenses of
the commission would not be allowed.
IN THE ESTATE OF THE LATE JOHN MILLEB,
Trusteeship — Application to be relieved of—
Consent of joint trustee.
Mr. Juta presented the petition of Jane Rebecca
Miller, praying that she might be relieved of the
office of joint executrix and trustee in the said
estate. It appeared from an affidavit sworn to by
petitioner that her co-executor and joint trustee,
the Guardian Insurance and Trust Company of
Port Elizabeth, had oonsented to her relinquishing
the trust.
The Chief Justice, in granting the petition as
prayed for, remarked that good cause had been
shown why the petitioner should be relieved from
the trusteeship, the mere so as the Guardian In-
surance and Trust Company, an institution in
which the Court had the greatest confidence, had
oonsented.
PETITION OF ANNA M. MEIBING.
Mr. Graham moved, on behalf of the petitioner,
for leave te sue in forma pauperis, in an action
against her husband for restitution of conjugal
rights, failing whioh for divoroe.
Referred to counsel for his certificate.
IN THE ESTATE OF THE LATE WILLIAM
PRETORIUS.
Will — Alienation of landed property pro-
hibited — Quit-rent.
Mr. Schreiner moved for authority to sell the
landed property in this estate, in order to satisfy
certain claims for quit-rent. It appeared from an
affidavit read by counsel that the will of the late
William Pretorius contained a clause prohibiting
the alienation of one-half of the farm Retreat, in
the district of Maolear— the landed property re-
ferred te in the application. — Mr. Schreiner, on
the authority ef Sande, (Omnia Opera, Pan* III,
35
ftp. I, Sees. 1, 2, 8), contended that the
prohibition of the will was mull and void inas-
much as there was no person mentioned in whose
favour the alienation had been prohibited.
The matter was referred to the Master, informa-
tion to be given as to the amount of quit-rent due.
DALTON V. QUINE.
Mr. Oastens moved for leave to the defendant to
sign judgment against the plaintiff for failure to
proceed with his action.
As notice had not been served, the matter on
the application of counsel was allowed to stand
over.
GREENE V. BEVEBIDGE.
Mr. Schreiner moved for the issue of a oommia-
Bkm to take the evidence of a witness named
Briggs, at present residing in Durban, Natal.
Mr. Searle opposed the motion.
The Court ordered the commission to issue, and
appointed the Resident Magistrate of Durban
commissioner, and in the event of his being unable
to accept the office Mr. Attorney Carmichael, the
eommiBtion not to interfere with the hearing of
the ease this term.
IK THB ESTATE OF SAMUEL PHILLIPS.
Mr. Maskew moved for authority to the execu-
trix to raise a loan of £150 on mortgage of the
landed property in the estate, for the purpose of
effecting the necessary repairs and satisfying debts.
Matter referred to the Master and amount te be
fixed by him after inquiry.
IHSOLVEKT ESTATE OF BIOHABD H. AUNN.
Mr. Caotens applied for an extension of the time
in which the trustee is required to file the final
accounts by six months. — Leave granted.
INSOLVENT ESTATE OF DONALD D. HOUSTON.
Mr. Graham moved fer authority to the trustee
and to the Registrar of Deeds to pass transfer to
the purchaser of a certain farm called Vlakplaats,
situated in the district of Umzimkulu, Griqualand
East.
Mr. Justice Buchanan intimated that the matter
had come before him in Chambers, but he was
under the impression that it was in the form of a
process in aid of a judgment of the Resident
Magistrate. — The matter was again referred to the
learned judge for his consideration.
THE PAABL BANK, IN LIQUIDATION.
Company — Bank in liquidation — Shareholders
past and present. Application to place
past shareholders on list of contributories
refused on the grounds inter alia that the
liquidators had failed to show that any of
the debts owing by the bank had been
incurred before such past shareholders had
transferred their shares.
Sir Thomas TJpington moved, on the petition of
the liquidators of the Paarl Bank, for an order to
settle the list of contributories, fix the time for the
proof of debts, assess the amount of the call, give
liquidators power to effect compromises and pay
out dividends without first filing accounts,
sanction the appointment of an attorney, and fix
the liquidators' remuneration. ^
Mr. Searle appeared for Mr. G. J. Colliers and
Mrs. Elizabeth van Niekerk, to object to their
names remaining on the list of contributories
annexed to the liquidators 1 report.
Mr. Schreiner said he represented a considerable
number of persons aod estates, who applied to
have their names struck off. Altogether there
were 24 applicants.
Sir Thomas TJpington prooeeded to discuss the
question as to whether there was any authority te
go behind the registered shareholders at the
present time for the purpose of placing any former
shareholders on the list.
The Chief Justioe : Do I understand that all
the opposing shareholders oppose on the ground
that they have ceased to be shareholders before
the date of the winding-up ?
Mr. Searle : Yes, my lord.
The Chief Justice : But the dates at which they
ceased to be shareholders vary ?
Mr. Searle replied in the affirmative, and added
that there were several other grounds.
The Chief Justioe : Can you tell me, Sir Thomas,
whether the accounts er report show when the
debts were contracted in respect of which past
shareholders are now sought to be made liable ?
Sir Thomas Upingtoj) : I have no specific
accounts to that effect. What I have is merely on
affidavit. What they rely on is, that in certain
lists given to the Registrar their names do not
appear. ' »
Mr. Justice Buchanan: Wouldn't it also be
neoessary for you to show that the present share-
holders will not be able to pay the debts ?
Sir Thomas TJpington : It will be my contention
that in the circumstances that happened they never
ceased to be shareholders at all. The question
was (continued counsel), what was the position of
persons who were shareholders in unlimited con-
cerns like the Paarl Bank ? They must be looked
8*
upon in the light of partners in the oenoern, and
the liability which would attach to a former
partner would attach to anyone of the former
shareholders. Had any persons on the list, by
conduct of theirs or by anything that had happened,
shown that they had- released themselves from the
position of partnership in which they were placed ?
He submitted that the true state of the law would
be that if a person who was in the position of a
partner retired from the firm, without public
notice to any ef the creditors of the firm of his
retirement, he would still be considered in the
light of a partner, not only for the debts for whioh
he would have been liable up to the date when he
secretly left the firm, but for all debts of the part-
nership subsequently incurred, until he did give
publio netioe.
The Chief Justice, remarking upon the mode in
whioh notice was to be given, said it was quite a
modern custom to advertise the dissolution of a
partnership in the publio newspapers. Where was
the notice to be given? If in the Government
Gazette the chances were that nobedy would
see it.
Sir Thomas Upington submitted that the proper
machinery for giving notice was through the
Government Gazette, just as under the English law
the London Gazette was the legal medium. As
regarded the contention that the bank had been
previously dissolved) this was Dot in accordance
with the facts, whioh showed that it had never
absolutely expired, and he contended that the
liability continued until the actual winding-up.
Counsel then read a brief affidavit by the liquida-
tors, to the effect that a large amount of the debts
was contracted when the present applicants were
shareholders.
Mr. Bearle then addressed the Court on behalf
of his clients, arguing that as the bank's directors
were compelled to supply a list of shareholders and
other information to the Deeds Office, that was a
sufficient means of putting before the publio any
alteration in the constitution of the bank, or its
list ef shareholders; further, that there was net
sufficient to show that the debts were contracted
at a time when his clients were shareholders. He
relied also upon the argument that they were
barred from liability by prescription.
Mr. Schreiner submitted that the Court could
not order a late shareholder to pay the same debt
concurrently with a present shareholder. If he
had originally held five shares and he had sold
them to Baron Rothschild the liquidators would
naturally come on the Baron for the amount of
his liability, but could they also oeme upon him
(Mr. Schreiner) for a concurrent payment ef the
same debt? Proceeding, counsel briefly .referred
to the applicants he represented. One whose
estate he appeared for had been off the list for
thirty-six years, and was dead into the bargain.
In fact, he represented a number of estates of
deceased shareholders.
The Chief Justice, in giving judgment, said the
questions involved in the application were of great
importance, and he would like to give a formal
judgment, but at the same time he might state
they had already decided that the application to
strike out the names of all past shareholders
should be acceded to on the ground that it was
wholly premature on the part of the liquidators
to place the names of past shareholders, who had
bona fide transferred their shares, on the list at all.
In the case of " The Cape Commercial Bank v.
Hofmeyr " the Court said that until it appeared
that the contributories on the list were unable to
meet the liabilities of the bank they could not
entertain any application for adding to the list
the names of shareholders whose shares had been
bona fide transferred before the date of the
winding-up. In the present case there was no
dear evidence to show that the contributories on
the list A were unable to meet the liabilities of
the bank. There was no doubt a statement in the
report whioh suggested that it was possible the
present shareholders would not be able to pay,
but it did not go further. He was also reminded
that there was a further affidavit to the effect that
the liquidators had eome to the oonolusion that
after all present shareholders had been exoussed
there would be a deficiency of £57,000, but he
thought they should go further, and that there
should be an account framed from whioh it would
clearly appear that this would be the result. And,
moreover, before any past shareholder oould be
sued, it must be clearly shown that the share-
holder to whom he had transferred his shares was
unable to pay. There had been no excussion, as
in the case 6t Hofmeyr. But, supposing it was
proved that the contributories were unable to
meet the liabilities, the further question arose
whether any person who oeased to be a shareholder
before the winding-up, oeased to be a shareholder
at a time when any of the existing debts of the
oompany were owing. In his opinion no share-
holder could be held liable for any debts incurred
after he oeased to be a shareholder. In his
opinion, also, the notice in the Registrar of Deeds*
office stood in the plaoe of a notice in the
Government Gazette or the public newspapers, and
that it was sufficient notice to persons dealing with
the oompany as to who were shareholders in it.
The application to strike out the names of all
those persons who had transferred their shares
before the winding-up came into operation must
be granted. At the same time, it was understood
that this would not bar the liquidators from
hereafter placing their names on the list, in case,
for instance, it oould be proved that debts were
owing by the bank at the time they oeased to
be shareholders. It waft no doubt quite true
ST
that the liquidators represented the shareholders,
bat it could mot be lost sight of that for certain
purposes they also represented the orediton, and
as at present advised he was inclined to think that
the orediton' claims against individual share-
holders were taken away by the Act, and that they
could only assert their claims through the medium
of the liquidators. If this were correct then,
under the Act of 1861 creditors had certain rights
against shareholders, and the only way the
liquidators could assert the creditors' rights was
by placing the shareholders on the list of con-
tributories. Accounts must, however, be framed
to show that at the time one ceased to be a
shareholder certain debts were owing, in respect
of which creditors oeuld sue him. In other words,
that no person could be placed on the list of
contributories, even on list B, unless it could be
shown that if the company had not been wound
up, there were creditors now in existence who
could sue him on the list.
Sir Thomas Upiagton remarked that he had
advised the liquidators to withdraw list B for the
present.
The Court then fixed the 31st March for the
proof of debts. Place of proof, the office of the
Pasrl Bank. The mode of proof to be the same
as in the case of the Union Bank. The amount
of the first call to be £260 per share, with interest
si 6 per cent, from date of call. The dividend not
to be less than Is. in the £. The appointment of
Mr. De Yilliers as attorney was sanctioned. The
remuneration of the liquidators to be a matter foe
after consideration. The oasts of only four sets
of respondents would be allowed.
Postea (February 16) the following formal
judgment was delivered.
The Chief Justice said : There are three classes
of past shareholders in ths Pasrl Bank who now
apply to have their names struck out of the list of
contributories. The first class oensists of the
representatives of deceased shareholders, the
second of shareholders who ceased to be such
before the last renewal of the period of the bank's
continuance, and the third ef shareholders, net
falling within either of the first two classes, who
had eeased to be shareholders before the order for
winding up the bank was made. All the appli-
cants, however, are either shareholders or
representatives of shareholders, whose shares had,
before the order, been actually transferred to and
registered in the names of the present shareholders.
In the view which I take of the case all the
applications may be considered together. The
first principles independently of statute which
should guide the Court in deciding the respective
rights of creditors and shareholders of joint-stook
^"ipanifs must be looked for in the common law
relating to partnership, and may be traced
farther hack to the common law relating to
mandate or agency. A partner, who is known to
be such to creditors dealing with his oo-partnera,
is liable for debts incurred by his co-partners, in
the name and on behalf of the partnership and
within the scope of its business. For the purpose
of carrying on the business his oo-partners are his
agents, but upon the dissolution of the partner-
ship the agency would also cease to exist except '
for the purpose of liquidating the affairs of the
partnership. It follows that fresh obligations
incurred by his ce-partners after the dissolution
ought not to bind him except in oases where
such a rule would lead to a breaoh of faith with
creditors. Such a case would oertainly arise where
a oreditor has given oredit to a firm upon the faith
of a former partner still being a member and in
ignorance of his having ceased to be such. Voet
(42, 17, 26)* in discussing the question whether the
renunciation ef a partnership by one partner should
be effected by apublio or private intimation, draws
a distinction between the oo-partners and creditors
who have dealt with ths partnership. As to the
former, he says that a private intimation is suffi-
cient, but as te the latter, he maintains that their
rights cannot be affected by a private dissolution.
As creditors, he says, who have contracted with
one of the partners and given oredit to the
partnership, they are entitled to receive notice, ,
either by a public advertisement or by a private
intimation, that an end has been put to the
partnership. The notice required to be given to
old customers I take to be a special one, for he
adds that it is required in order to prevent
creditors from being deoeived through their
ignorance of the dissolution, and that a creditor
who is not ignorant of the dissolution cannot take
advantage of the absenoe of a publio advertise-
ment. In the case of persons who had not dealt
with the partnership before the retirement of a
partner, a public notification of such retirement
would seem to have been sufficients According to
Pothier (" Partnership," sec. 166), if traders or
artisans who were accustomed to furnish supplies
to the partnership have bona Jide, after the dis-
solution of the partnership, of which they were
ignorant, continued to furnish these supplies to
one of the former partners, on account of the
partnership, all the former partners or their heirs,
will be bound. . . . Suppose, for instance,
they were ignorant of the death of one of the
partners, whioh was not yet known in the place
where they furnished the supplies, or were
ignorant of the renunciation of the partnership
made by one of the partners ; notice of the renun-
ciation not having been given to them, and not
having been made public." From these and other
authorities it seems clear that in order to relieve a
person from liability for fresh obligations incurred
by the firm to old oustomers after he has retired
from it, notice of his having so retired mutt be
38
proved to have been given to the customer to
whom the fresh obligation was incurred. Pothier
farther says : " When the traders or artisans have
furnished the supplies after the expiration of the
time for which the partnership had been con-
tracted, they cannot be heard to allege that they
were ignorant of its dissolution, because those who
have business with persons who are in partnership
ought to inform themselves of the terms of the
partnership." "This," he adds, "is the opinion of
Gomez (Var. Res., 2, 6, 6)," the same author and
the same passage cited by Voet in support of the
views I have quoted from him. The doctrine thus
laid down seems to follow, from the ordinary rule
in regard to agents, that persons dealing with them
ought to acquaint themselves with the nature and
extent of their authority, and is subject to the
same qualifications as the rule. Until the year
1861 the liability of all joint-stock companies,
except a few incorporated by special statute, was
unlimited. In regard to creditors dealing with
such companies, the shareholders were to all
intents and purposes partners, and were subject to
the oommon law relating to partnership. In 1861
the first Joint-stock Companies' Limited Liability
Act was passed, by which members of all joint-
stock companies, exoept banking companies, were
enabled to limit their liability for the debts and
engagements of such companies. The term
" joint-stock company " was defined as meaning,
for the purposes of that Act, " every partnership
whereof the capital is divided, or agreed to be
divided, into shares, and so as to be transferable
without the express consent of all the partners,
and also every partnership which at its formation,
or by subsequent admission, shall oonsist of more
than twenty-five members." The 12th section
provides that execution shall not issue against any
shareholder until after the company has been
excussed, and that no shareholder shall be liable
to pay in satisfaction of such execution a greater
sum than shall be equal to the portion of his
shares not then paid up. The 18th section pro-
vides that if any shareholder shall have been
excussed, execution may issue against any former
holder of the shares held by such shareholder for
such amount as he shall have failed to pay in
satisfaction of the execution, not exceeding, how-
ever, the amount which such former holder would
have been liable for if he had been the present
holder of the shares. Then follows this important
proviso which considerably modifies the common
law as already explained : " Provided, also, that in
the case of execution against any former share-
holder, such shareholder shall have been a share-
holder at the time when the contract or engage-
ment for which the judgment, deoree, or order may
have been obtained was entered into, or became a
shareholder during the time such contract or
engagement was unexecuted or unsatisfied, or was
a shareholder at the time of the judgment, decree,
or order being obtained." Thus far the provisions
of the 18th section, as amended by Act No. 11 of
1879, are applicable to all companies, including
banking companies with limited as well as un-
limited liability. But the further provisions of
the section, as so amended, relating to banking
and other companies with limited liability, differ
from those relating to banking companies with
unlimited liability. As to the former, no t
execution, even to the limited extent already
mentioned, can issue against a former share-
holder after the expiration of two years next
after the return of the transfer of the shares
has been made to the Registrar of Deeds. As to
the latter, that is, banking companies with un- ;
limited liability, it is not sufficient that two years
had expired from the time when the share had
been transferred, but the former shareholder xnnst
also have published certain notices in the news-
papers that he had oeased to be a shareholder in
such banking company. The past shareholder in a
banking company with limited liability is, of
course, not liable for more than the unpaid portion
ef his shares. As to shareholders in a banking
oompany with unlimited liability, the last proviso
of the section provides that "every such share-
holder shall, as such former shareholder, be liable
to the same amount as if this Act had never been
passed." The language of this proviso is certainly
most unfortunate, but it dearly could not have
been intended to neutralise everything that had
been enacted immediately before in regard to
banking companies with unlimited liability, which
are the only kind of banking companies to which
that section (before it was amended by the Act of
1879) could possibly refer. Its object was to
make it perfectly clear that, although former
shareholder of such banking companies are allowed
to participate in the benefits conferred by the
section, they shall not on that account be con-
sidered as having been members of a limited
liability company. In regard to debts incurred
and engagements entered into before they oeased
to be shareholders their liability is unlimited, and
not, as in the case of former shareholders of bank-
ing companies with limited liability, limited to the
amount of the unpaid portion of their shares. But
even such debts and engagements former share-
holders are, as I have just pointed out, relieved
from, if in the case of banking companies with
limited liability two years have elapsed since the
return of the transfer of the shares, and if, in the
case of banking companies with unlimited liability,
two years have elapsed since the transfer and
public notice of such transfer has been given. As
to debts and engagements incurred after transfer
no liability attaohes to former shareholders of
banking companies, whether their liability be
limited or unlimited. In this respect such share*
39
holder* are placed upon the same footing as retired
partners who have given due notice by public
advertisement and by special notice to their
customers of their retirement from the partnership.
And in order to prevent any possible breach of
faith with customers of joint-stock banks by giving
them the fullest information as to the concerns of
inch banks, the 16th section of Act No. 19 of 1866
requires every such bank to file annually with the
Registrar of Deeds a copy of the instrument under
which it is constituted, together with a list of the
names of the shareholders up to the 31st December *
preceding. In 1868 the Winding-up Act was
passed. The object of that Act was to provide
efficient machinery for winding up, under the
supervision of the Court, not only companies which
are unable to pay their debts, but also those whioh
the Court may on other grounds deem it to be just
and equitable that they should be wound up. As
regards insolvent joint-stock companies they could,
before the Act, be wound up under the Insolvent
Ordinance, but as the sequestration of the estates
of such companies would involve great difficulties
where there were many shareholders to deal with,
it was deemed advisable to provide a simpler
machinery for winding up such companies or any
partnerships consisting of more than seven
members. The Act is based upon the English Act
of 1862, but omits a great many of its provisions,
especially those relating to the liability of past
shareholders to be placed upon the lists of con-
tributories. This omission was intentional, and
the nature and extent of their liability must there-
fore be sought for in our own common law as
modified by our own statutes. For the purpose of
conducting the proceedings in winding up a com-
pany the Court may appoint one or more liquidators,
and their duties are performed under the imme-
diate control and supervision of the Court. They
have the powers of a curator bonis under the old
law, together with such further powers as under
the Act they may be permitted by the Court to
exercise. On behalf of some of the applicants it
has been contended that, whatever rights creditors
of the Paarl Bank may have against former share-
holders, the liquidators have no business to assist
them in the assertion of those rights. This con-
tention involves the assumption that creditors have
the right, after a company has been ordered to be
wound up, to assert their rights, in their own
miiim, against shareholders, whether past or
present — an assumption whioh is entirely at variance
with the whole scope and object of the Winding-up
Act. It is inconsistent also with the common law,
which, after the appointment of * curator bonis,
takes away the rights of creditors to sue the person
or estate whioh he represents, and throws upon
him the duty of collecting all the aseets, suing for
them when withheld, and distributing them among
the creditors. Bo large were the powers of a curator
bonis that, according to Voet (42, 7, 6), he could,
although representing the estate of the debtor,
also represent the oreditors in an action to recover
articles pledged to such creditors by the debtor
whioh had improperly come into the possession of
third parties, and he might even (Voet, 42, 7, 7)
claim from a creditor who had possession of a
thing pledged delivery of the thing for the
purpose of realisation, reserving of course
to such creditor his right of preference in
respect of the proceeds. In the case of " Liquida-
tors ef Cape Commercial Bank v. Hofmeyr" (2,
Juta, 366), the Court by no means intended to lay
down that the liquidators only represented the
company. A past shareholder had been placed
upon the list of contributories without proof that
the existing shareholders would not be able to
make good the deficiency, and the Court held that
the liquidators should give effect to the trust deed
releasing past shareholders as between them and
the continuing shareholders. It was distinctly
admitted in the judgment that for certain purposes
the liquidators must be taken to represent the
creditors, and one of those purposes is the re-
covery from persons liable to contribute towards
the payment of the debts the amounts owing to
such oreditors. The list of contributories is settled
by the Court upon the recommendation of the
liquidators, and the only question in each case is
whether the person placed upon the list by the
liquidators is bound by law to contribute to the
payment of the debts of the company. In the
present case the liquidators have placed upon the
list the names of the applicants, and they have
made the statement, in their report and by affidavit,
that the shareholders registered as such at the
date of the winding-up will be unable to meet the
full amount ef the deficiency. They have
omitted, however, to state, or to frame an account
shewing, that any of the debts owing by the bank
had been incurred before the applicants' shares
were respectively transferred to the present share-
holders. This emission is, in my opinion, fatal.
A shareholder who would not now be liable as
such to any creditor, in case the bank had never
been placed under the Winding-up Act, cannot be
made liable at the suit of the liquidators. None
of the applicants would have been liable to
oreditors in respect of debts incurred by the bank
after the applicants respectively ceased to be
shareholders, and, in the absence of any account
showing when the debts owing by the bank were
incurred, the applicants are entitled to have their
names removed from the list of contributories.
WEB8TEB V. SOLOMON AND ANOTHER.
On the application of Mr. Bearle, the rule nisi
interdicting the removal or sale of certain
furniture and goods attached to satisfy a judg-
40
ment of the Resident Magistrate of Gape Town,
pending an aotien to be brought by applicant for
reoovery of rent, was made absolute.
IN THE ESTATE OF THE LATE GEORGE E.
ROSS.
Mr. Searle moved for an order requiring the
widow of the deceased to deliver up to the execu-
tor of the estate the deeds of transfer and other
documents in her possession relating to the assets
therein. Mr. Searle informed the Court that Mrs.
Ross had this morning, through her attorney
expressed her willingness to give up the required
documents. Sueh being the case he had merely to
aBk for oosts, which were granted.
GROOM V. THE BECHU AN ALAND EXPLORA-
TION COMPANY.
Sir T. Upingion, QC, with whom was Mr.
Schreiner, applied for an order postponing the
trial of a pending action until such time as the
defendants shall be enabled to procure the attend-
ance of Mr. Hermann, a necessary witness.
Mr. Searle opposed the motion.
The Court made no order with regard to
Hermann, but directed that the evidence of Groom
and White should be taken at the trial, and if
Hermann did not arrive in time for the trial an
order would be then made.
THE LIQUIDATORS OF THE UNION BANK V.
WATSON'S ESTATE.
Mr. Schreiner moved, on behalf of the liqui-
dators, for leave to place on the list of contribu-
tories the heirs of the said estate to the extent
that they had derived benefit therefrom, and for
direction as to service of notice thereof on the
said heirs. It appeared from the statement of
counsel that Mr. Watson had died in 1884, and at
the time of his death he was the registered holder
of 60 shares in the Union Bank. His heirs, who
were ten in number, had each reoeived £4,818 in
the final distribution of the estate, and it was now
asked that they should be placed on the list of
oontributories.
Mr. Searle, who appeared for the heirs, opposed
the motion.
The Court granted a rule nisi calling upon the
heirs to show cause why they should not be plaoed
on the list as oontributories. Copy of the rule to
be served on Messrs. Van Zyl 6 Buissinne, and
to be made returnable on the 16th of May.
PARKER V. HOPKINS.
Mr. Schreiner moved on behalf of the applicant,
a niece of the respondent, for a rule nisi calling
upon the latter to show cause why she should not |
be declared of unsound mind, and incapable of
managing her own affairs.
The Court granted the rule, and appointed Mr.
Castens curator ad litem.
IN THE INSOLVENT ESTATE OF PETER
JOSEPH OATES.
On the application of Mr. Juta, Mr. Henry Flint
East was appointed provisional trustee, with per-
mission to carry on the business of the Crown
Hotel, Claremont, formerly oonduoted by the
insolvent.
SUPREME COURT.
MONDAY, FEBRUARY 16.
[Before the Chief Justioe (Sir J. H. DE
VlLLIERS), Mr. Justice SMITH, and Mr.
Justioe Buchanan.]
MATHEW V. PENTZ AND THE COLONIAL
GOVERNMENT.
Diamond — Right to possession — Action for
recovery.
Mr. Searle and Mr. Graham appeared for the
plaintiff.
Mr. Schreiner and Mr. Jones for the
defendant Pentz, and Mr. Giddy watched the pro-
ceedings on behalf of the Colonial Government,
and intimated that the Government had with-
drawn its claim and merely held the diamond
subject to the decision of the Court in this case.
This was an action brought by Mrs. Mathew,
wife of Alexander Mathew, of Johannesburg,
against the Colonial Government and Nicholas
William Pentz, of Warrenton, for the delivery of a
diamond which it was alleged was the property of
the plaintiff, or, in the alternative, payment of
£2,000, alleged to be its value. The declaration
alleged that about the year 1862 the plaintiff
resided on her father's farm in the division of
Swellendam, where she found a certain stone, of
the nature of which she was then ignorant, and
about 1871 she handed it over to defendant Pentz
for the purpose of making inquiry as to its quality.
In the year 1889 she heard that the stone was a
diamond, and that Pentz had given it te the
Detective Department in Kimberley, whereupon
she made a demand for it.
The plea of the defendant Pentz was to the
effect that about 1870 Bessie Myburgh, now Mrs.
Dreyer, sister of the plaintiff, gave him the stone,
whioh was supposed to be a crystal, as a keepsake ;
that when he was at Warrenton in 1889, an expert
41
in diamonds identified the stone as a diamond, and
the defendant accordingly handed it over to the
Detective Department. He then brought an
action against the department, and last November
the Supreme Court gave judgment in his favour,
awarding him possession of the diamond, but
appointing the Government its bailee, until
security could be given by the plaintiff (Mrs.
Hathew) for the eosts of the present action.
The Chief Justice : Has Mrs. Mathew seen the
diamond?
Mr. Searle : I understand a sight ef it has been
refused.
Then how can she recognise it ?— There is other
evidence.
Then all yon can say is that you had a diamond ?
—Yes, we say we handed a large crystal to Pentz.
Mr. Giddy here remarked that the Colonial
Government made no claim for the diamond, and
had withdrawn from the proceedings, except so
far as it was concerned as bailee of the stone.
Thomas Woodville Harker, chief clerk of the
Detective Department, Kimberley, called by Mr.
Bearle, stated that in October, 1889, Pentz came
to the office with a diamond which he told witness
he had received about thirteen years before from
Kiss Bessie Myburgh, at Heidelberg, and that
Miss Bessie Myburgh was now a Mrs. Dryer.
Pentz further stated that he did not know it was a
diamond, and had only kept it as a keepsake,
together with a small peacock's feather, and a
letter which he had received at the same time.
Witness saw M**. Dreyer early in November at
Bredasdorp, and in consequence of what she told
him, Mr. Pentz was brought to that place. They
saw Mrs. Dreyer, who said that she had never seen
the stone before. Pentz tried to refresh her
memory and mentioned the feather and the letter,
which letter he said he had torn up. Mrs. Dreyer
said she did not remember either the stone or the
letter. Subsequently a telegram was received
from Mrs. Mathew claiming the diamond as hers.
The Chief Justice : Has the plaintiff seen the
stone?
Witness : It was not placed singly before her.
You did show it to her ?— Oh yes 1 I put it in a
box with a number of imitation diamonds.
And could she recognise it as her diamond ?—
No, she could not identify it.
Cross-examined by Mr. Sohreiner : The diamond
was an 87-carat one, and not an 18-earat stone,
at alluded to by Mrs. Mathew in a telegram to
the Detective Department, in which she also
stated that she was coming to claim it. There
were paragraphs in several newspapers concerning
the case before it came on, and in the Johannes-
burg Star was an intimation, soon after Pentz
gave the stone to the department, that it was in
their custody.
You showed Mrs. Mathew the diamond amongst
Q
others and she could not recognise it? — She did
not recognise it.
Have you anything— any diamonds — which you
could place side by side with the stone in dispute,
in order to test her knowledge of it ?— I have not ;
but there may be spurious diamonds in the Attor-
ney-General's offioe. (Great laughter.) Left there
as ourios, though. (Renewed laughter.)
Didn't you find from the different people you
made inquiries of that Mr. Pentz bore an honest
reputation ?
Mr. Searle : I object to that ; I don't know
what it means.
Mr. Sohreiner : Don't yen know what an honest
reputation is ? (Laughter.)
The Chief Justioe overruled the question as
irrelevant, and this concluded the evidence of the
witness.
Mr. Tilman Boux Myburgh, Meltkamer, Bredas-
dorp, brother of Mrs. Dreyer and Mrs. Mathew,
referred to the visit of Mr. Harker to the farm
with the stone in dispate. Witness could net at
first believe it was a diamond.
Mr. Searle : Had you seen the stone before ?
Witness : I saw such a stone in my father's desk
years ago.
Is it the same stone ? — The same shape, but it
is a little brighter than when I saw it.
Do you remember the stone for many years ? — I
knew it was in the desk for a long time.
Was it considered to be a diamond ? — I thought
it was only a crystal or white stone. There was
also a green stone in the desk of a fibrous nature.
Cress-examined by Mr. Sohreiner : I believe it
is the same stone as was in my father's desk.
You remember that there was a large find of
crystals on an adjoining farm to your father's ? —
Yes ; but none were so big as this.
Mr. Searle then proposed to show witness the
diamond, which was done, the stone being care-
fully kept from the sight of Mrs. Mathew.
Mr. Searle : Is that the stone you saw Mr.
Harker had with him ?— I believe it is the stone
from its shape and a little mark on it.
Had the stone in your father's desk any mark
upon it?— There was a little flaw in it, and,
judging from the shape, I should say that is the
same.
Mrs. Hester Hannah Mathew, born in 1862,
stated that she married in 1871.
Mr. Searle : Do you remember in November,
1889, seeing a paragraph in the Star ?
Witness : My husband read it to me.
The Chief Justioe : It is headed " Another
South African Romance."
Witness (continuing) said she made an affidavit
in consequence of what she heard, and afterwards
went to Kimberley. She pioked up the stone when
she was between eight and ten years of age. She
found it near the cattle kraal, on their farm near
42
Heidelberg, and took it to her father, who looked
it up in his desk, along with a piece of asbestos.
It waa always known as "Heesie haar Kristal."
Witness was at school at Durbanville, and at Ron-
debosch. Between 1867 and 1869 she gave Pentz
the stone. He was postmaster at Heidelberg.
How did you get it to give him ? — I asked my
father for it, as Pentz had promised to have it
examined. They had often talked of the stone.
The Chief Justice here pointed ont that there
was some discrepancy in the plaintiff's dates.
Mr. Searle said she had only arrived in town
this morning from Johannesburg, but considering
the length of time that had elapsed she was as
near the date as possible.
Witness (continuing) said she met Mr. Mathew
as she was going home from Rondebosch in 1869,
and they were engaged a year later. Her father
died in 1877. Since her marriage she had lived at
Bredasdorp, Beaufort West, Malmani, and
Johannesburg.
Mr. Searle : Have you ever seen Pentz sinoe ?
Witness: I last saw him during the Basuto
war. I came down to Heidelberg, where Pentz
had married.
Did you ever speak to Pentz about the stone
afterwards ? — No, never. I olean forgot all about
it until I saw the news in the Star.
Were the circumstances recalled as soon as you
saw it in the Star ? — At once.
Can you desoribe us the stone. How large was
it ?— I cannot describe anything very accurately,
having parted with it so long ago.
The Chief Justice : Is it as long as the joint of
your thumb ?
Witness : Something like that, but I could not
say definitely ; besides, I am colour blind.
Mr. Searle : Was it square or round ?
Witness : It was of irregular shape.
What colour was it ? — It was white, but not
pure white.
Would you know the stone now if you saw it ? —
I might recognise it, but I would not be positive.
Look at this crystal now, and tell us if it is the
stone.— The stone was then handed to the plaintiff,
who at once exclaimed, " Oh yes, that is it."
You think that is it ?— I think it is it. It is a
difficult stone to describe.
Cross-examined by Mr. Schreiner: Yon see the
stone now ?
Witness: Yes.
Mr. Harker shewed you a lot of stones, didn't
he, in an oblong box ? — Yes.
Was that stone in your hand among them ? —
I don't know.
Did you look among the stones ? — I didn't take
pnrficnlnr notice.
Y« u k» ew one of them was the diamend yon
laid claim to? — No, Mr. Barker didn't tell me it
was there.
Didri't he ask you to pick out the stone ? — No,
he didn't. He asked me if I could identify it, and
I said I could not undertake to do so, and then he
said he would show me a few stones, and he did.
Did he not ask you whether the diamond was
amongst them ?— No.
You never were on friendly terms with Pentz ?
—No.
You never wrote him affectionate letters ?— I
should think not.
Mr. Justice Smith elicited from the witness that
she never mentioned the matter to her husband,
because it never occurred to her memory at all,
and she was a bad hand at remembering dates.
Mrs. Elizabeth Catherine Dreyer, born in 1866,
and married in 1877, six weeks after her father's
death, who was also a witness in the recent action
by Pentz against the Government, said the stone
was generally spoken of as " Heesie haar KristaL"
She considered the stone produced as the one
which her father kept in his desk. It was the
same stone that was produced in the recent case.
Pentz alleged that she (witness) gave it to him as
a keepsake, together with a peacock's feather and
a letter, but he destroyed the letter only a few
months before he went to Warrenton. Witness
was confident she never gave him anything, and
she denied that she wrote a letter (produced).
Cross-examined : Witness was taken by Mr.
Schreiner over a great part of her former evidence,
and adhered in the main to her statement. She
was never too fond of Pentz, who about 1870 was
engaged to Miss Botha.
Mr. Schreiner : About that time, when Pentz
was twenty years old, he was considered a gay
young fellow ?
Witness : I don't know.
Didn't you know that of him ?— No.
Was he a good young man, who still manages to
live ? — Witness made no reply.
The Chief Justice : What do you mean by "a
gay young man " ?
Mr* Justice Smith : Perhaps a gay Lethario.
(Laughter.)
Mr. Schreiner : I de not mean anything wrong.
Mr. Justioe Buchanan : You mean a ladies'
man ? (Renewed laughter.)
Mr. Schreiner : He was a great admirer of the
ladies. (Laughter.) Was there, Mrs. Dreyer,
nothing of sweethearts' innocent little endearments
between you and Mr. Pentz ?
Witness : Nothing of the kind.
How is it, then, that he comes to have couple of
photographs of you ? — He might have got them
somewhere else.
There were plenty of your photographs in the
district, weren't there?
Witness : Yes. (Great laughter.)
Mr. Schreiner : Aid Mr. Pentz seems to have
got his share. (Renewed laughter),
I 1
43
The Chief Justice : They are hardly photographs
ihe would have sent to her lover. They do not do
her justice at all. (More laughter).
Mr. Searle : Were they taken by a local artist ?
Witness : I think at Heidelberg.
Mr. Andreas Johannes Dreyer, husband of Mrs.
Dreyer, detailed the conversation which took place
between his wife and Mr. Pentz at Bredaedorp,
when Mr. Harker was also present. His wife
denied having ever given Pentz anything, and the
latter asked her to admit that she had given him
the atone, and he would give her £100.
Cross-examined : He distinctly heard Pentz
offer the money.
Mrs. Johanna Jacoba Myburgh, aged seventy-
one, widow of Tilman Boux Myburgh, of Heidel-
berg, stated that her daughter Hessie was about
ten years old when she brought a stone into the
house which she said she had found outside the
house. There was never another stone so large
found on the {arm. The stone produced was very
like it. Her opinion was confirmed by the fact of
a little scratch she noticed on it, but it was twenty
years ainoe she saw it.
Cross-examined by Mr. Scbreiner : Was Pentz
engaged to your daughter Bessie ?
Witness : No, I think not.
Tour daughter was an attractive girl, and there
were plenty of young fellows?— Oh, yes; they
came so many. (Laughter.)
And Pentz was a fine, well-set-up young fellow ?
— He came there like a friend, and never said
anything specially.
Never asked that he might be engaged to her ? —
Never. Continuing, witness said she heard about
1870 that an adjoining farm was supposed to be
diamondiferous.
Mr. Schreiner here quoted a paragraph from the
George Advertiser of November, 1870, from which
it appeared that en ground adjoining the
Myburghs' farm a small diamond about the size of
a pin's head had been picked up. The paragraph
concluded with the remark that if gold and
diamonds were found in the country things would
begin to look cheerful. (Laughter.)
This closed the case for the plaintiff.
For the def enoe,
Mr. Nicholas Willem Pentz, defendant, stated
that he was plaintiff in the late action against
the Detective Department to recover the diamond,.
He knew the Myburghs from youth. In 1868 he
was at school at the Paarl, thence he went to
Heidelberg, and subsequently became the post-
master there. He knew Miss Bessie Myburgh
(Mrs. Dreyer) well. He never saw the stone ajb
the farm, and he never asked for it. Miss
Myburgh gave him the letter (produced), together
with the diamond and peacock feather as keep-
sakes. After knocking about the country for
tome years witneas got to Warrenton, when on the
advice of ethers he gave the stene to the
detectives. At the interview with Mrs. Pentz he
stated that he had destroyed the letter, but
subsequently he found it. He never offered ^lrs.
Dreyer £100 if she would admit that she had
given it. His wife found the letter, and she
advised him so by telegraph whilst he was at
Bredasdorp. The telegram went to Kimberley.
Some time after Miss Bessie Myburgh gave him
the store he reminded her of it, but she made no
comment upon it. The photographs produoed were
given him by her.
How old were you when you went to Heidel-
berg ?— About twenty.
AnH you knew a good many young ladies in the
place ? — Oh, yes ; many.
Cross-examined by Mr. Searle : On the ?th of
December last he made an affidavit to the effect
that he had destroyed the letter.
Mr. Searle: Now that telegram is dated
November 24 ?
Witness : I didn't read the telegram until after
I had made my affidavit. I thought my wife was
alluding to some other Betty.
CiosB-examination continued : He oould not tell
why he did not throw the stone and feather
away as well (as he supposed he had done) as the
letter. He had often kissed Miss Betty, and
there was certainly love-making between them.
He had kissed her — (laughter)— and oould not
account for having said at the last trial that there
was no love-making, beyond saying that his evidence
had been misunderstood.
Mr. Searle : What is your idea of love-making ?
Isn't kissing part of it ?
Witness: I should think so. Continuing, he
said he could not produce any other letters from
Miss Myburgh. He oould not give any reasons for
the presents, because he was not immediately leav-
ing Heidelberg. Never remembered Miss Hester
Myburgh asking him to see what the stone was.
Re-examined : He had since found a letter from
Miss Munnik in a cash-box wherein was the letter
of Miss Bessie Myburgh.
The Chief Justioe said he supposed the purpose
of putting Miss Munnik's letter in was to show
that there was no resemblance between the hand-
writing of the two letters. After examining them
he said that there certainly was no resemblance.
Mr. Harker (re-oalled) stated that, in his pre-
sence, the defendant in a friendly way offered
£200 to Mrs. Dreyer, but she said she would not
take a false oath for £1,000. The offer was not a
serious one, and witness did not look upon it as a
bribe. When he showed Mrs. Mathew a box of
diamonds, with the one in dispute amongst
them, she pleaded colour blindness and defective
memory. She picked up several, and had the
actual diamond in her hand, as she had others, but
she did not actually identify it.
44
Mrs. Dolina Berthrina Pentz (born Botha), aged
83, wife of the defendant, said that before her
marriage she frequently saw defendant kiss Miss
Betty Mybnrgh. After witness was married he
showed her the diamond, which was always kept
in a cashbox. After her husband had gone to
Bredasdorp she found in the bottom of another
cashbox the letter from Miss Myburgh, containing
the feather. Very often their child used to play
with the stone. They knew nothing of its value.
Cross-examined : Bhe had never been asked to
search for Miss My burgh's letter and sent the
telegram on her own responsibility. Bhe did not
send the letter for two months after telegraphing.
This ooncluded the evidence.
SUPREME COURT.
TUESDAY, FEBRUARY 17.
[Before the Chief Justice (Sir J. H. DE
VlLLIERB), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
mathew*y. fentz -and the colonial
government.
[Second Day.]
Mr. Searle and Mr. Graham for the plaintiff.
Mr. Schreiner and Mr. Jones for the defendant.
Mr. Giddy watched the proceedings on behalf of
the Colonial Government.
Mr. Searle, in opening his argument, remarked
that there had been very great conflict of testi-
mony. There were, however, two points which it
would be the duty of the Court to consider: (1)
Was the diamond claimed by plaintiff the crystal
found on My burgh's farm twenty years ago ? And
(2) if that were so, whose story was to be believed
as to the way in which the defendant had become
possessed of it ?
Mr. Justice Smith : I suppose, Mr. Searle, you
base your contention on the fact that the diamond
was found on the My burghs' farm?
Mr. Searle : Yes ; all the witnesses agree on
that point.
Mr. Justioe Smith : Because it appears to me to
be inconceivable how a man like Pentz could have
kept a diamond in his possession for so long a time
without ascertaining its value*
Mr. Searle, continuing his argument, maintained
that the diamond had been sufficiently identified,
considering the long period that had elapsed since
many of the witnesses had seen it. He further
contended that Mrs. Mathew's account of how Bhe
had given the stone to Pentz was muoh more
worthy of credence than the aooount given by the
defendant.
Mr. Schreiner put in the order of Court in the
case of Pentz v. The Attorney-General, tried in
November last, and remarked that the Court would
have to take into consideration, in weighing the
evidence given in this case, the action of the
Colonial Government with regard to the defendant,
which virtually amounted to a recognition of the
bona fides of his claim. The onus was on the
plaintiff of proving that she had a better claim to
the diamond than Mr. Pentz, and this claim she
had wholly failed to establish. Counsel then
commented upon the ease with which the plaintiff
appeared to recognise the diamond when it was
shown to her in the witness-box, although she had
failed to identify it a short time before when it
had been shown to her by Mr. Harker. Con-
tinuing, Mr. Schreiner remarked that, no doubt,
both the plaintiff and her sister had picked up
many crystals on their father's farm from time to
time, and when she heard ef the paragraph in the
Star, and the wish being father to the thought,
she advanced a claim to the diamond, which she
had failed to establish.
The Chief Justice remarked that the first large
diamond had been found at Hope Town.
Mr. Justice Buchanan: A voracious ostrich
might have swallowed the diamond.
Mr. Schreiner : I do not remember ostriches so
early as 1870 in the district in which the parties
lived, but it was a well-known fact that travellers
coming from the interior frequently brought down
pretty stones with them. Had the ostrich scare,
or rather mania, or boom —(laughter)— been on at
that time it might offer a possible explanation.
Mr. Justice Buchanan : It would have been
difficult for an ostrich born in the Colony to have
found a diamond on the banks of the Orange
River.
Counsel then remarked that the apparent dis-
crepancy between the defendant's testimony in the
previous case and in the present with regard to his
love-making oould be easily explained. Mr. Pentz
had evidently peculiar views on the subject of
love-making. He perhaps thought that it involved
serious intention, and he appeared to imagine that
where there had been no affection there oould be
no love-making. There was abundant evidence
that he had kissed Miss Myburgh, but kissing to
him appeared to be like shaking hands to other
people. His love may have been of a higher
standard, but he ought not to be disbelieved
because he entertained rude and bucolic views of
what was generally regarded as love-making.
With regard to the discrepancies in Miss Myburgh 's
letter, counsel submitted that when young ladies
wrote love letters they were not very particular as
to the " context." The alteration was in the same
handwriting as the letter.
The Chief Justice z I should have thought there
would have also been a postscript.— Counsel^ in
45
conclusion maintained that the plaintiff had failed
to establish her case and that the defendant was
entitled to a verdict.
The Chief Justice, without calling upon Mr.
Searle to reply, delivered the following judgment :
In the previous action Drought by Pentz against
the Government, the only question that arose was
as to which of the two had the better right to the
stone. Pentz had possession, and inasmuch as the
Government did not prosecute in that case, and
did not profess its willingness to prosecute, the
Court held that as between him and the Govern-
ment he was entitled to the stone. The question
which we have now to decide is whether the plaintiff,
Mrs. Mathew, is entitled to the stone as against
Pents. I quite agree with Mr. Sohreiner that we
are bound to take it that the Government had no
ground to prosecute Pentz at all, and that he came
into possession of the stone in a perfectly innocent
manner. The difficulties which are involved in
this case I think are greatly diminished by the fact
that it is common cause between plaintiff and
defendant that this diamond was not in the year
1890 found at Kimberley or the river diggings, but
that it had been in the possession of the defendant
for a leng time before. It is oommon cause also
that this diamond, whether it originally came
from the Diamond-fields or not, did somewhere
about 1870 come from the farm at Heidelberg.
It is quite possible that this stone, like so many
other diamonds found in the Colony, might have
been brought into the Colony by some traveller
or trader, who did not knew its value, and who
simply threw it away, and that in this way
it was found by someone on the farm. I am
quite satisfied that Mrs. Mathew, the plaintiff
in this suit, did give Pentz the crystal, or pebble
which she thought to be a crystal, and that she did
so being anxious to disoover whether it was a
diamond or not. As soon as her husband read the
paragraph in the Star, she, without delay, through
her husband, telegraphed to the Kimberley
Detective Department claiming the diamond.
How unless there had been something of the kind
between her and Pentz, I am satisfied she would
not on the spur of the moment have induced her
husband to send the telegram. There is no doubt
a mistake in the telegram in which she says it was
an 18-carat diamond, but she was misled by the
paragraph in the Star, which spoke of it as such.
It would have been quite impossible for her to
have remembered the exact size and weight of
the diamond, for the last time she saw it was
twenty years ago. Therefore he did not lay stress
on the mistake between 18 carats and 87 carats.
Now, if the defendant had admitted in this oase
that he had received some pebble from Mrs.
Mathew, but that this stene, which ultimately
proved to be a diamond, was not the one he
Motived, I should ihave attached. greater weight
to his evidence than I do ; but being satisfied as I
am that he did get the pebble from Mrs. Mathew,
the only question is whether the diamond is the
diamond she handed to him. In order to decide
between the two, I think we should look at some
of the circumstances of the case whioh have no
direct bearing on the issue, but may materially
assist the Court in arriving at a conclusion. The
defendant Pentz relies on the letter whioh he alleges
he received from Mrs. Dreyer. As far as I can form
any opinion on the case, I believe the letter was
never written by Mrs. Dreyer at all. The hand-
writing does not correspond with her true hand-
writing. In the affidavit the defendant made on
the 7th December, he does not at all refer to a
telegram he had already received from his wife,
stating that the letter had been found. It is too
late now to ask for a postponement of the ease
on a question of this kind, and even if there had
been no discrepancy, it would not have made any
material difference to my judgment, but in my
opinion the telegram was received before he made
this affidavit ; but when he received the telegram
from his wife he was satisfied in his own mind
that it was some other letter referred to. I
believe it to be utterly incredible that this large
stone would have been enclosed in this flimsy
envelope given to Pentz. His account is that the
letter was given him by Mrs. Dreyer herself. She
totally denies it, and 1 do not think it is a letter,
considering the degree of intimacy between them,
which a young girl of fifteen years of age would
have written to him at all. But supposing she
did write it, on the face of it ii shows marks of hav-
ing been altered, and the words " aid stone " having
been written in afterwards. The ink is also
different. I think these circumstances are suffi-
cient to discredit the whole of the evidenoe given
by the defendant. We are now reduced to this
issue to decide between two alternatives. Was
the diamond given to Pentz by Mrs. Dreyer as a
keepsake, or was it given him by Mrs. Mathews
for the purpose of discovering whether it was a
diamond or not ? I am perfectly satisfied that the
most probable version is that given by Mrs.
Mathew. I have many reasons to believe that
this is the more truthful, and under these cir-
cumstances I am of opinion she is entitled to the
diamond. Even supposing the Court is mistaken
in supposing that Mrs. Mathews did give the
diamond, and supposing it to be true that the
defendant did get the diamond from Mrs. Dreyer,
then it is some oonsolation to think that no great
injustice is done in oase the Court has gone wrong
on the facts; because, as a man of honour at
all events, the defendant ought, if his
version be true, to have returned the diamond
to Mrs. Dreyer, and not to have kept it. What-
ever may be the law, in all honour the defendant
ought to have returned it to Mrs* Dreyer, but I
u
do not believe hii version is true. I believe it
came from Mrs. Mathew, and ai between the two,
she is entitled to it, with oosU.
Mr. Jastioe Smith said he concurred in the
judgment except as to that part of it whioh
referred to the letter. He believed that that
letter had been written by Miss Myborgh.
Mr. Jastioe Buchanan remarked that his great
difficulty had been to oome to the conclusion that
the stone, whioh was river-washed, had ever been
picked np en the farm. He ooncurred in the
judgment of the Chief Justice.
B0BKBT80N V. BOBEBTSON.
Mr. Graham, on behalf of the plaintiff, obtained
leave to take the evidence, on commission, of some
of the crew of the Conway Castle, whioh vessel
was advertised to sail at two pan. te-day Mr.
Casterns was appointed commissioner.
IN BB OHABLE8 AD8HADE, (AN ALLBOBD
LUNATIC.)
Mr. Jnta applied for the appointment of Mr.
Henry Adshade as curator of the person and
property ef his father, Mr. Charles Adshade.
The Court, after having heard the evidence of
Mr. Henry Adshade and the affidavits of the
Resident Magistrate and District Snrgeon of
Swellendam, declared Mr. Charles Adshade to be
a person of unsound mind and incapable of
managing his own affairs, and appointed his son,
Mz. Henry Adshade, curator of his person and
property.
GBOOM AND WHITE Y. THE BBC HU AN ALAND
EXPLORATION COMPANY, LIMITED.
Contract — Breach — Damages — Prospecting
rights in territory of independent chief.
Mr. Bearle and Mr. Bheil appeared for the
plaintiffs.
Sir Thomas Upington, Q.C., and Mr. Schreiner
for the defendant company.
This was an action instituted by the plaintiffs
against the Bechuanaland Exploration Company
(Limited), for breach of contract, damages being
laid at £1,000. It appeared from the opening
statement of counsel that the parties entered into
a written agreement at Cape Town on the 27th
Deoember, 1889, under the terms of which the
plaintiffs were to have liberty to prospect in all
such portions of the Bamangwato (Khama's)
oountry as were open to the exploration of the
oompany'e paid employes. At the date of the
agreement the defendants held certain rights in
and over the said oeuntry in inspect of prospecting,
and otherwise by written concession from Khama.
Early in 1890 the plaintiffs fitted out and prepared
themselves f er a prospecting expedition under the
agreement, and arrived in Palapye towards the
end of February, 1890. In May, 1890, the plain-
tiffs undertook oertain prospecting operations in
Khama's oountry under the agreement, but were
prevented by the company's agent from continuing
the same, on the grounds that Khama objected
to their prospecting in any part of his oountry
except in the region of the Crocodile River. As
no defined portions of the Bamangwato country
had been specified in the agreement, the plaintiffs
declined to be limited in their operations to the
neighbourhood of the Crocodile River, and con-
sidering that the action of the company's agent in
so limiting them amounted to a breach of contract,
instituted the present action.
Charles Groom, called by Mr. Searle, stated that
he had lived in England till November, 1889, when
he came to the Colony with Mr. White for the
purpose of prospecting for gold in Khama's
country. Before he left England he had had
several interviews with Mr. Weatherley, the
secretary of the defendant company, who referred
him to Major Johnson, the company's manager
out here. A few days after his arrival in Cape
Town he saw Major Johnson, who informed him
that he had sent in bis resignation and that it had
been aocepted. He afterwards introduced him to
Mr. Goldschmidt, who, on behalf of the company,
entered into the agreement with himself and Mr.
White on the 27th Deoember, 1889. On the
following day we left for KimberLey, in which
place we remained six days. On the 25th
February we arrived in Palapye and reported
ourselves to Mr. Heany, the superintendent of the
company. We spoke to Mr. Heany about having
the agreement ratified by Khama, but he said be
was going away for about five days and on his
return he would give the matter his attention. On
his return he informed us that he had resigned,
but that Messrs. Moseathal and Stephani would
treat with us. Messrs. Mosenthal and Stephani
subsequently told us that we oould not ge on our
prospecting tour just at present, as Khama would
not permit us. On the 17th April we were told
that we oould start, as Khama had given his
permission. We left Palapye on the 1st May, and
about 40 miles from that town we found very
good indications, and began to prospect. We
were, however, prevented by a letter from Mr.
Harman, telling us that Khama would not have
us there, and that we must go to the Crocodile
River. Witness further stated that he and Mr.
White then went on about 14 miles, and again
met with good indications of gold, but they were
alio prevented from working at this latter spot.
4t
The plaintiff s then returned to Palapye, and they
were of opinion that there was no use in going to
the Crocodile River, they had received snch bad
account* of that locality from other prospectors.
They arrived in Oape Town on the 19th August,
and commenced proceedings against the company.
Cross-examined by Sir T. Upingten, Q.C. : The
expenses charges were those incurred between the
ttth December, 1889, and 19th August, 1890 The
wagon, donkeys, and harness were bought from a
European in Kimberley, who was paid in cash.
He did not knew the man's name. He and Mr.
White gave up prospecting because Mr. Harman
would not allow them to continue. The attitude
of Khama did not affect them further than it
concerned the company.
Re-examined: Mr. Harman did not complain
of any breach of faith on their part. He con-
sidered the £80 a month claimed for himself and
Mr. White very moderate indeed.
Mr. Edward White corroborated the evidence of
the last witness, — Cross-examined by Sir T.
Upington, Q.O. : He had experience in gold
fwfatHig and prospecting in Marico, Klerksderp,
and Johannesburg. Marico had not turned out
well, but he had nothing to do with that They
" panned " at the first place they stopped at but
found no gold, and the second place six reefs were
plainly visible. They did not pan as they had ne
time, but he had brought down a specimen of
quartz in which gold could be seen with the aid of
a glass. He was not the only man in the country
who understood prospecting. He thought the
question a childish one, and he might as well ask
the learned counsel if he were the only " lawyer "
in Cape Town. The money to defray the
expenses of the expedition had been found by
Mr. Groom. The climate of Palapye did not agree
with him.
In answer to the Court, the witness stated that
the reefs at the " second spot" were four or five
feet wide. He would not consider the result
obtained from crushing surface quartz a true test
of the quality of the reef lower down.
Groom (recalled) stated that in his opinion
was nothing to prevent the paid employe's of
the company from working at the place which
they (plaintiffs) had selected.
The correspondence having been put in, the
further hearing of the case was posponed until
SUPREME COURT.
WEDNESDAY, FEBRUARY 18.
[Before the Chief Justice (Sir J. H. DE VILLIERS),
Mr. Justice Smith, and Mr. Justice
BUCHAVAN.]
CLABIDOK Y. KELLAWAT.
Lease. Hire and Purchase system — Cancel-
lation of agreement owing to failure of
monthly payments— Tacit renewal of lease
Sir T. Upington, Q.C., and Mr. Juta for the
plaintiff.
Mr. Sohreiner and Mr. Maskew for the defendant.
This was an action instituted by the plaintiff,
the owner of Claridge's Hotel, against the defen-
dant and his wife to recover certain furniture hired
to the defendants, and £60 damages for non-
delivery of the same. It appeared from the
opening statement of counsel that on November
80, 1888, an agreement was entered into by plaintiff
and Mrs. K ell away, assisted by her husband, upon
the hire and purchase principle, under which the
hirer agreed to pay £100 on December 1, 1888, £60
•n the 1st September, 1889, £60 on the 1st March,
1890, and £10 per month from December 1, 1888,
for the rent of the furniture. In case the hirer
did not perform his part of the agreement, the
owner might at onoe terminate the hire. The
defendant might, however, purchase the furniture
for £688. The monthly payments were made
until October, 1890, when they ceased, and plain-
tiffs agents thereupon cancelled the agreement,
and demanded possession of the furniture. The
defendant alleged that the payments were from
time to time deferred with the knowledge of the
plaintiff, and that the Ootober payment was so
deferred with plaintiffs consent.
Mr. Justice Smith : Do you contend, Mr* Juta,
that if payment was made on Ootober 2, you could
have taken possession of the place, and all money
paid would have been lest ?
Mr. Juta: Strictly speaking it is so. These
agreements do appear as a hardship on one side,
but they are universally aocepted, and there are
advantages on both sides. The defendants in the
present case pleaded further that they offered
£2*7, the balance of the purchase price of the
furniture, after deducting the amounts previously
paid, but this was refused.
Mr. Thomas Herbert Hasell, partner in the firm
of Steer & Co., plaintiff's agents, examined by Mr.
Juta, stated that the first three instalments under
the agreement had been paid by defendant. The
rent, £10 a month, had not befn paid regularly j
48
witness had frequently to send for it, and had
often told defendant that if he were not more
regular in his payments he would fan the risk of
the agreement being cancelled. The agreement
had been entered into with Mrs. Kellaway, as the
defendant said that if he entered into it his
position as caretaker of the Houses of Parliament
might be affected. Witness sent several times for
the rent in October. He knew that Kellaway was
in finanoial difficulties. The furniture had been
attached in October under a judgment of the
Resident Magistrate's Court. On the 28th October
he gave defendant notice of the cancellation of the
agreement. On the same day a meeting of
Kellaway 's creditors was held. He attended the
meeting, and refused an offer of the balance due
on the furniture. After the meeting Mr Kellaway
and his brother-in-law (Mr. Jex) called to see him,
and offered him the October rent, which he refused,
telling them that the agreement had been ean-
oelled. The defendant then said, " Surely you are
not going to exact those rights." Witness replied
that he was aofcing under legal advioe, though
contrary to his own sense of justice, but he would
see what he could do with his principal (Mr.
Glaridge).
Cross-examined by Mr. Sohreiner : He could not
fix any date upen which the warning of probable
cancellation was given. Witness consented to look
after defendant's interests in so far that he was
net humbugged. The agreement for the lease of
the premises was entered into concurrently with
the hire and purchase contract. The first payment of
£10 per month was not made until January 8 instead
of January 1st. Witness was of opinion that under
both contracts the payments should be on one day,
but it might have been implied that they ran
concurrently. Defendant had paid up to the 81st
of August. When defendant made the verbal
contract witness believed he had the money in his
pocket. Witness said that if Claridge acted on
his advise the contract would be reinstated.
Mr. Wahl, clerk to Steer & Co., corroborated
Mr. Hazell's evidence as to demanding the rent
from defendant in October.
Mr. Kellaway, oalled by Mr. Sohreiner, stated
that the lease was executed on the 80th November,
1888, and the first payment was made on the 8rd
December. Mr. Hazell gave him to understand
that as long as he paid £40 a month he would be
all right, and that he (Hazell) would look after
his interests. Mr. Hazell never told him there
was danger of the lease being oanoelled ; £420 had
been paid under the agreement. Witness further
stated that he was ready to pay the balance
Cross-examined : At times Hazell told him to
be earlier in his payments. He would swear that
Hazell never told him he ran the risk of having
the agreement cancelled.
}lr» Bonnes (accountant) stated that he made an
offer by letter to Mi. Villet, of Steer 6 Co., to pay
the balance due on the furniture.
Mr. Juta then proceeded to argue that under
the terms of the agreement there had been a
forfeiture, and that the plaintiff was within his
rights in cancelling the agreement.
Mr. Schreiner oentended that there had been no
breach of the agreement, and that the plaintiff
was practically out of Court.
The Chief Justice in giving judgment, said the
whole question depended upon whether on the
28th of October the lease of hiring had or had not
expired. In his opinion it had net expired when
the defendant gave notice that he would pay the
balance of the purchase price on that day. It was
a question of fact whether there was a tacit
renewal ef the lease during the month of
October. For twenty-eight days the defendant
was allowed to occupy the premises, and he (the
Chief Justice) was satisfied that on the 28th
Ootober the plaintiff had debarred himself by his
own acts from insisting on the defendant giving
up the furniture, and he was bound to allow him
time to the end of the month before he could
claim it. The hire purchase had net expired, and
defendant had the right under the 9th clause to
exercise his option of purchase. It was dear the
defendant was entitled to the judgment of the
Court. There was some difficulty in regard to the
form of judgment, there being no claim in recon-
vention, and the defendant still tendering the
balance ef the purchase price. If Mr. Juta would
accept judgment for the amount tendered that
would end the difficulty, but plaintiff would not be
entitled to costs. Judgment would be for the
plaintiff for the amount tendered, but plaintiff to
pay costs. They had also to protect the interests
of the plaintiff, and under the judgment the
furniture was to remain his property until the
balanoe, less the taxed costs, had been paid.
THORNE AND STUTTAFOBD V. MCNALLT.
Contract — Agreement with employee — Con-
struction — " Absent from whatever cause."
Mr. Sohreiner for the appellants.
Sir T. Upington for the respondent.
This was an appeal from a decision of the
Resident Magistrate of Cape Town, in a ease in
which the respondent (the plaintiff in the Court
below) had sued Messrs. Thome & Stuttaford
for £1 10s., an amount deducted from her wages
in consequence of her absence through illness.
The Resident Magistrate held that the plaintiff
had not " absented " herself within the meaning ef
her agreement with defendants, and gave judg-
ment for the plaintiff with ooste. From this
decision the defendants now appealed. Mr.
49
Schreiner, in supporting the appeal, contended
that both under the terms of the agreement and
by the common law (Voet, 19, 2, 27) the appellants
were justified in deducting an amount of the
respondent's salary proportionate to the time
during which she had been absent. The matter
in dispute was small, but this was merely a test
case, and waa one of great importance to large
employers of labeur.
Sir T. Upington, Q.C., for the respondent, sub-
mitted that there was practically no difference
between the common law of England and the
common law of this country with regard to the
abtenoe of servants through illness, and contended
that the passage cited from Veet was in his
fsrour. The Magistrate had put a reasonable
constructien upon the clause of the agreement
referring to absence, which meant voluntary or
wilful absence and not absence through ill-health.
Counsel, in support of his contention referred to
the case of " Cuckson v. Stones " (1, B. and EL,
248), and "prayed that the appeal might be dis-
missed with costs.
The Chief Justice in giving judgment, re-
marked that the decision of the Court would have
to depend upon the construction of the clause of
the agreement referring to absence. The clause
said from M whatever cause," and although he
would like to be able to construe that clause as
the Magistrate had, he did not see hew it was
possible. The Magistrate held that the words
" absent herself " applied only to cases in which
the respondont had voluntarily absented herself
and not to cases in which she was unable to attend
through illness. It had not been proved that she
was physically incapable of going te business ; in
fast, she had absented herself. The appeal must
be allowed, and the judgment of the Court below
reversed. No order would be made as to costs.
SUPREME COURT.
THURSDAY, FEBRUARY 19.
[Before the Chief Justice (Sir J. H. DE VlLLlEBS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.]
admission.
On the application of Mr. Juta, Mr. William
Alfred Tindal was admitted to practise as an
attomey-at-law and notary public.
EXECUTORS OF LOTNE6 V. COCHRANE.
Mr. Jenes, on behalf of the executors, applied
for provisional judgment on a promissory note
for £26.
Mr. Searle, for the respondent, prayed for a
stay of execution, and offered to pay £4 a month.
The note on being put in was feund to be
unstamped, and a penalty of £1 was inflicted.
Provisional sentence was granted, subject to the
payment of the fine and ordinary office stamp.
FLETCHER V. HUGO.
On the application of Mr. Thorne, provisional
sentence was granted on a promissory note for
£56 68. 6d., with interest from the 22nd December,
1890.
JACKSON V. CUTTING.
Leave was granted, on the application of Mr.
Searle, Mr. Juta agreeing, for the case to stand
over sine die.
LIQUIDATORS CAPE OF GOOD BANK V. JOEL.
Mr. Schreiner prayed for provisional judgment
for £9,876 9s. 4d.— Provisional sentence granted as
prayed for.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted i Henry
Brink, Johannes van der Westhuysen, Johannes
Lodevicus Boux.
PARKER V. HOPKINS.— DE LUNATICO
IN QUI REN DO.
Mr. Schreiner, on behalf of the applicant, moved
that the rule nisi granted on Thursday last calling
upon the respondent to show cause why she should
not be declared of unsound mind and incapable of
looking after her own affairs might be made
absolute.
Dr. Herman, called by Mr. Schreiner, stated
that he had examined Mrs. Hopkins on the 1st
February at her house in Maitland. He found
that she was just recovering from a stroke of
paralysis and appeared to have completely lost her
memory. When he questioned her as to where
she was living she said in Kimberley. She had
forgotten her own name and appeared to be
Buffering from delusions, one of which was that
her father had fired the first gun at the battle of
Waterloo.
In answer to the Court, the witness stated that
physically the respondent was improving, but that
mentally she was becoming worse. If she com-
mitted a crime in her present condition he did not
think she could be held liable for her act. She
was not actually of unsound mind, but she was
weak minded.
50
Mr. Castens, the curator ad litem, informed the
Court that he had had an interview with Mrs.
Hopkins and found her condition such as had been
stated by Dr. Herman.
The Court found that the respondent was not of
sufficiently sound mind to look after her own
affairs, and appointed Mrs. Parker curator of her
property. Costs to be paid out of the estate.
DALTON V. QUINB.
On the motion of Mr. Castens, leave was given
to the defendant to sign judgment against the
plaintiff for failure to proceed with the action
instituted by him.
COLONIAL ORPHAN CHAMBER V. MABNITZ.
Postponed till 12th March.
THE GAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION.)
Mortgage Bonds satisfied and subsequently
lost or mislaid — Application for cancella-
tion of— Rule existing in registry of
Deeds, Cape Town — Refusal to comply with
rule by Registrar of Deeds King William's
Town — Rule nisi granted.
Mr. Bchreiner moved, on behalf of the liqui-
dators, for authority to the Registrar of Deeds at
King William's Town to cancel in the Debt
Registry certain three mortgage bonds, amounting
to £82,000, passed by Charles Edward Nioholls
and his wife in favour of the said bank, such
bonds having been satisfied, and subsequently
lost or mislaid. It appeared from the statement
of oounsel that a rule existed in the Deeds Office>
Cape Town, by which bonds that had been
satisfied and subsequently lost were cancelled on
notice being given in the Government Gazette and
newspapers of the district, in which the subject of
the bonds was situated. The Registrar of Deeds
at King William's Town refused to conform to
this rule without the authority of the Court, and
hence this application.
Mr. Justice Buchanan suggested that, as there
had been litigation about the bonds in question,
it was just possible that they might be among the
records of the Eastern Districts Court.
The Court granted a rule nisi, calling upon all
persons interested to show cause why the bonds
should not be cancelled. Notice of the rule to be
published in the Government Gazette and Eatt
London Dispatch.
THE CAPE OP GOOD HOPE BANK (IN LIQUI-
DATION) IN BE CABONEL'8 CONTBACT.
Company — Bank in liquidation — Contract
entered into between liquidators and debtor
of bank approved of by Court.
Mr. Bchreiner moved for leave to the liquidators
of the Cape of Good Hope Bank to enter into a
contract whereby the Baid Caronel shall be dis-
charged from his liability to the bank in terms of
agreement come to between the parties.
It appeared that Caronel was indebted te the
bank in the sum of £40,763, against which the
bank held scrip valued at £3,615. In considera-
tion of the liquidators abandoning any further
olaim against him, Caronel had offered them a
quarter-share in the farm Wesselton, which was
supposed to be diamondiferous. The liquidators
anticipated a large profit if the agreement were
sanctioned by the Court, whereas if they proceeded
to extreme measures with Caronel they would
probably get nothing.
The Chief Justice : In the event of the debts
being paid off in full, is the balance to be divided
between the liquidators and Coronel ?
Mr. Schreiner: That is the arrangement, my
lord, but a large sum of money may bo made by
the transaction.
The Chief Justice : Is the right to the quarter
in dispute ?
Mr. Schreiner : It is possible that it may be the
subject of litigation, but none of the expenses will
be paid out of the liquidation.
The order was granted as prayed for.
GAPE OF GOOD HOPE BANK (IN LIQUIDATION.)
Company — Bank in liquidation— Order in
terms of Liquidators' Report — Dividend —
Remuneration of Liquidators.
Mr. Schreiner moved for an order in terms of
the recommendations of the official liquidators,
contained in their second report, dated 2nd
February instant. Continuing, counsel said the
first matter he would mention was that, owing to
some oversight, the publishers of the Cape Argxu
omitted to insert the last order of Court, conse-
quently publication as ordered had not been fully
complied with. However, as the Argus published
the second report in full, together with a full
report of the application, he would ask that that
might be taken as sufficient compliance with the
order.
The Chief Justice assented.
Mr. Schreiner then moved for leave to pay a
second dividend of 6s. in the £ on and after the
1st of March. Assets were in hand snifioient to
51
eorer it, and be also requested that the liquidators
might have power to pay future dividends from
time to time, as the funds permitted.
The Ceurt fixed the future dividends at not less
than la., but left it to the discretion of the liqui-
dators as to inor easing that amount.
Mr. Sohreiner remarked that the only remaining
order was regarding the liquidators' remuneration.
They had been anxiously engaged in the liquida-
tion, to the almost entire exclusion of other
business. The liquidation was the largest that
there had been in the country, and the position of
the hank was wholly unlike any other in respeot
of the number of branches. In the matter of the
Union Bank the two liquidators appointed were
gentlemen who represented certain companies, but
in the Cape of Good Hope the case was different.
The Chief Justice: Is there any large staff
engaged?
Mr. Sohreiner: A certain number ef the old
employe's have been kept on.
The Chief Justice : Has anything been saved by
having so many liquidators ?
Mr. Sohreiner replied that a good many clerks
at the various branches had received notice, and
tome of the liquidators were generally away. One
had been in the Transvaal, and the others had
their hands full.
The Chief Justice: The question is on what
principle the remuneration is to be computed. Is
it to be on salary er percentage ?
Mr. Sohreiner suggested that up to £1,500,000
the liquidators might divide 1 per cent.
The Chief Justice : That would mean £15,000.
Mr. Schreiner : But it will extend over a period
of three years, and will be only about £1,000
tach per year. Then after that I suggest there
may be the ordinary insolvency allowanoe above a
million-and-a-half of 2£ per cent.
The Chief Justice remarked that when the
liquidators were appointed the Court pointed out
that the number wsb very large, and it was pro-
bable the same amount would be awarded as if
two first-class men had been appointed. He was
inclined to think the remunerations should be a
salary for the first year of £4,000, or £800 each,
and let the succeeding years be decided afterwards.
Mr. Schreiner stated that the Transvaal liqui-
dators had one-half per cent, on the assets
collected, and £100 each for the very short time
the three of them were in office. The Cape liqui
dators had naturally a delicacy in discussing the
matter of remuneration.
The Chief Justice : I don't see why counsel
should have. (Laughter.)
Mr. Schreiner : Well, the delicacy reflects itself.
(Renewed laughter.)
The Chief Justice said that creditors had had
no opportunity of expressing any opinion as to what
the remuneration should be, and in the absence of
any suoh expression of opinion the Court thought
that for the first year £4,000 would be sufficient.
What the remuneration was to be in subsequent
years would depend to a great extent on the
expression of the wishes of the oreditors, and on
the actual result of the liquidation.
The second report, together with the recom-
mendations contained in it, was then confirmed.
WILSON V. WILSON AND MINNAAB.
Mr. Juta moved, en the petition of the first-
nan ed defendant, for leave to defend in forma
pauperis the action instituted against her by her
husband for divorce.
It appeared that there was an informality in
the matter, one of the parties, who was a J. P.,
having certified that the other party was not
worth property of the value of £10.
Mr. Justice Buchanan said they would soon
have a clergyman marrying himself. (Laughter.)
The application was granted, subject to the pro-
duction of a proper affidavit.
CLABIDGE V. KBLLAWAY.
Mr. Juta stated that the amount settled upon by
the parties in this action, heard yesterday, was
£262 8s. 8d.
The Chief Justioe said the judgment would
therefore be for the plaintiff for that amount as
tendered, plaintiff to pay costs, the furniture to
remain his property until payment of the tender
is made, less defendant's taxed costs in the suit.
FRANCIS BBOS. V. SCHUNKB.
On the application of Mr. Searle, this matter
was allowed te stand over until to-morrow.
SUPREME COURT.
FRIDAY, FEBRUARY 20.
[Before the Chief Justice (Sir J. H. DB
VlLLlEBS), Mr. Justioe SMITH, and Mr
Justice Buchanan.
OLIVER V. OLIVBB AND PECKOVBB.
Divorce — Damages — Assault — Claim in re-
convention.
Mr. Schreiner and Mr. Molteno appeared for the
plaintiff ; the first-named defendant in default ;
the co-defendant appeared in person.
Mr. Sohreiner, having obtained leave to amend
the declaration, stated.that the action was instj-
52
tilted by the plaintiff (Mr. Robert William
Edward Oliver), a shopkeeper, carrying on business
in Heidelberg, in the district of Swellendam,
against his wife, Mrs. Alida Maria Oliver (born
Brand), for divorce by reason of her adultery with
the oo-defendant, who until lately had been a
" captain " in the Salvation Army. Damages for
£260 were claimed against the oo-defendant. The
oo-defendant, in his plea, denied the alleged
adultery, and claimed in reconvention the sum of
£500 in respect of an assault committed upon him
by plaintiff (the particulars of which are fully set
forth in the co-defendant's statement). The
replication admitted the assault, but pleaded that
it had been committed under great provocation,
and tendered in satisfaction of same £50, to be
deducted from the damages which might be
awarded to the plaintiff.
Mr. Nerman Lacy, clerk in the Colonial Office,
having produced the marriage register,
Mr. Sohreiner called the plaintiff,
Mr. Oliver, who stated that he was married to
the respondent at the Dutch Reformed Church,
Heidelberg, in 1880. There were five children,
the youngest eight months old. The co respondent,
Peckover, came to Heidelberg about March last
year. He was an officer of the Salvation Army,
in which witness was also at that time interested.
Peokever had his meals at witness's house, to
whioh he had free access. In November last
the oe-respondent went to Riversdale. About the
previous July witness reoeived information upon
which he taxed his wife with infidelity, but she
denied it, and referred him to Peckover. She
admitted that whilst witness was away they had
been up late hanging pictures, and Peckover con-
firmed this. As he was a captain of the Salvation
Army, witness believed him. There was a Mrs.
and Miss Osmond in the house during August
and November. When witness returned his wife
reoeived him very coldly, but appeared distressed
at Peckover's departure. On account of a letter
which witness saw, his suspicions were again
awakened, and he intercepted a letter at the
post-office addressed to Philda Adrianse, a servant
of his, who gave him permission to open the letter,
whioh was in Peckover's handwritting. About
the same time he received a letter from Peckover,
thanking him for his kindness. Co-respondent
was a single man, so far as witness knew. The
letter addressed to Philda Adrianse was really to
witness's wife. It was a long one couohed in most
affectionate terms.
Mr. Sohreiner informed the Court that it ran
to ten brief sheets.
The Chief Justice : It is a sermon ? (Laughter.)
Mr. Sohreiner : Is it more like the Song of
Solomon. (Great laughter.)
Evidence having been given showing the
relations between Peckover and Afro. Oliver,
Mr. Sohreiner was proceeding to call other
witnesses, when
The Chief Justice said that for the present the
letter showed the relations between the parties.
Addressing the co-respondent, be asked him if he
had any witnesses.
Peckover : No.
The Chief Justice: Do you wish to give
evidence yourself ? — Yes, my lord ; I would like
to speak on several matters.
The question is whether you will give evidence
on oath. Do you understand ? We cannot waste
time?— Yes. [Co-respondent then went into the
box.]
Have you seen this letter ? — Yes.
Did you write it ? — YeB, my lord.
It is a very affectionate letter ? — Yes.
Well, is the statement that you were in the bed-
room with Mrs. Oliver true or not? — Mrs. Oliver
called me in, and I went to the door. She said
she was sick. I said I was very sorry. I left,
after Baying " Good night." It is not true I took
my boots off.
You say you never committed adultery with
her ? — I never did.
Now, about the tarring and feathering ; what do
you say to that?— On the 22nd November I re-
ceived a letter from Mr. Du Preez, Mr. Oliver's
agent, respecting some money, and stating that a
letter had been discovered which would be used
against Mrs. Oliver in an action for divorce. I
was at Riversdale, and I said to my " lieutenant,*'
" I shall resign at once, in order not to bring the
Army into disgrace, before the things oome out to
the world." I wrote my resignation, and proposed
to leave for Kimberley. I left by private cart,
and arrived at Heidelberg in the morning. After
breakfast at a friend's house, I was walking up,
when I heard the sound of voices, and found a
crowd of men coming towards me.
Now come to the point. What did they do to
you? — They made a run for me. Mr. Kemp
caught hold of me.
Is he a member of the Salvation Army ?— No,
he is a canteen-keeper. (Laughter.) Proceeding,
witness said the crowd then put him in a wool-
sack. Mr. and Mrs. Oliver were among the crowd,
and she was asking her husband not to have any-
thing to do with the affair.
She saw yoja put in the woolsack ? — I believe so.
Mr. Justice Smith : Had you your clothes on ?
Yes. They pulled or dragged me from the hill to
Mr. Oliver's office, and there, by the order of Mr.
Oliver and others, I was undressed. They took all
my clothing off except just a flannel band round
my waist. Then I was tarred with a tar-brush
from the head to the knees, and then the feathers
were thrown all over me.
The Chief Justioe : Were you quite undressed ?
Witness : Yes, I had just one sook on, and the
53
band round the waist. I ran to the door and
aiked for clothes, and was kicked off the stoep.
Then I went straight to the Magistrate, and made
a deposition. Mrs. Oliver was near, and cried.
"Never mind, Peckover, God sees all, and knows
yon are not guilty." She did not say as the plain-
tiff alleged, " Didn't I tell you yon would get me
into this trouble ?"
What about the letter ? — It was written by me,
but I am very sorry it was. It was written in
reply to one from Mrs. Oliver.
Then all the affection came from her ? — Well, it
was her winning ways and conduct towards me
that led to this.
Cross-examined by Mr. Schreiner: I was enter-
tained by Mr. Oliver. He was then a friend of
mine.
The Salvation Army won't tolerate what has
been proved against you ? — No, of course not.
Have you ever kissed Mrs. Oliver ? — Yes.
How many times, thousands ? — No.
What do you mean by putting " thousands of
kisses " in pictorial style in that letter — a bathful,
a seaful of kisses and love, and more to follow "—
what do they mean ? — They mean nothing.
Is that your habit with women generally ?— No.
What does " O.G." mean at the bottom of the
letter ?— There is no definite meaning. I just put
it without any definite meaning to it.
It simply bubbled out of your affection ?—
Witness did not answer.
The Chief Justice pointed out that there would
have been ground for damages if the plaintiff had
not taken the law into his own hands to feather
and tar the co-respondent.
Mr. Schreiner submitted that the damage
sustained by the co-respondent was not equal to
that sustained by the plaintiff. Peckover 's act
was a dastardly violation of the hospitality of a
friend, under the guise of a minister of religion.
His conduct had been most atrocious.
The Chief Justice: Can the respondent pay
anything at all ?
Mr. Schreiner : 1 believe there may be some
payment.
This concluded the evidence, and the oo-respon-
dent briefly addressed the Court, observing that
he had sustained great damage to his character —
(laughter) — through these proceedings, and seeing
that the charge had not been proved, he asked for
monetary redress.
Mr. Justice Smith : What is your occupation ?
Co-respondent : I am a grocer by trade.
The Chief Justice, in giving judgment, said he
had no doubt whatever that the co-respendent had
been guilty of adultery with the respondent, Mrs.
Oliver, and it was committed under circumstances
which had been justly commented upon by Mr.
Schreiner as being of a very aggravating character.
The co-respondent Peckover was harboured in the
plaintiff's house as a friend, and treated hospitably,
and the reward of his kindness was for Peckover
to commit adultery with his wife* If the plaintiff
had not taken the law into his own hands, and it
had been proved that the defendant had means to
pay, the Court would undoubtedly have awarded
heavy damages, but plaintiff appealed only to his
own private tribunal, collected his friends, and
committed a most gross assault on the co-respon-
dent. In respect of the assault, under ordinary
circumstances, the Court would have given very
substantial damages to the co-respondent as
against the plaintiff. Under all the circumstances
the Court thought some damages ought to be
awarded to the plaintiff, notwithstanding the fact
that he took the law into his own hands, but they
would be only £50. The plaintiff admitted the
damages he ought to pay to the co-respondent te
the same amount, and the damages awarded to the
one would be set off against the damages awarded
to the other. Judgment would therefore be for
the plaintiff as against the first defendant, his
wife, for a decree of divorce, with the custody of
the children, and as against the co-respondent,
Peckover, for £50 damages with costs. In regard
to the claim in reconvention by the co-respondent,
judgment would be given for the plaintiff in re-
convention for £50, but notwithstanding that he
(Peckover) was awarded seme damages, the Court
was of opinion that he should pay all costs of the
suit. The first defendant (Mrs. Oliver) would
forfeit all the benefits she received by virtue of
marriage in community.
GILL Y. HIRSCH.
Trespass — Damages — Road — Divisional
Council— Acts 27 of 1884 and 40 of 1889.
— Perpetual Interdict.
Sir T. Upington, Q.C., and Mr. Graham for the
plaintiff.
Mr. Schreiner and Mr. Webber for the defendant.
This was an action for trespass and damages
instituted by the plaintiff, Professor James Gill,
against the defendant, Mr. Isidore Hirsch. Both
the parties live in Muizenberg. It appeared from
the opening statement of counsel that defendant,
at different times between the years 1888 and 1890,
dug and carried away sand from plaintiff's ground,
which abuts the main road to Simon's Town,
thereby endangering, as it was alleged, plaintiff's
fences and trees, and causing damage in respect of
which £100 was claimed. Last term Mr. Justice
Smith made absolute a rule nisi interdicting the
defendant from continuing the acts complained of,
and directing the applicant to bring an action
forthwith to assert his rights. The case now came
I on for hearing.
54
Mr. A M. de Witt, oivil engineer, stated that he
had examined Professor Gill's fenoes and ground,
and had prepared the plan put in.
Cross-examined by Mr. Schreiner : Witness
conld not say if the trees had been damaged, the
roots were certainly exposed.
Professor Gill, the plaintiff, examined, stated
that he bought the property in 1881. About
eighteen months ago he saw a man named John
van der Poll digging sand in front of his house.
Witness told him to desist and he went away, but
en the following day he saw Henry van der Poll,
and subsequently a man named De Bruins, digging
in the same place; the latter told him he was
digging the sand for defendant with the permis-
sion of the Divisional Council. Witness imme-
diately wrote to Mr. Hirsch, and received as a
reply a "memo " on his own letter from defendant
saying that he (witness) was not to bother him
with any more letters. He subsequently learned
from the secretary of the Divisional Council that
no permission had been given Hirsch to dig for
sand en the ground. His fence and trees had been
considerably damaged, many of the tap roots even
being exposed.
Cross-examined by Mr. Schreiner : Witness had
waited a considerable period before taking action
in the matter, as he was waiting for Mr. Johnson,
the road inspector, to come and view the part of
his property injured. It was only in August last
when he heard defendant tell De Bruins to cut
away all the bank that he applied for an interdict.
He was of opinion that the tap roots of the Port
Jackson willows had been out through ; the roots
all along the bank had been cut and were hanging
in " festoons."
Mr. Hugo, examined by Mr. Schreiner, stated
that he was a member of the Cape Divisional
Council. He had seen the embankment from
which the sand had been taken away. He was of
opinion that, for ordinary purposes of traffic, the
road was wide enough, but it was very desirable
that it should be widened. The Divisional Coun-
cil had appointed a committee to define the limits
of the road. He thought 30 feet would be a
proper limit. He did not think any damage had
been occasioned by removing the sand.
Mr. Molteno (Government Surveyor) put in a
plan which he had prepared, and expressed his
opinion that no damage had been done to Pro-
fessor Gill's property.
The Chairman of the Financial Committee of
the Divisional Council was then examined, and
corroborated the evidence of Mr. Hugo.
Joseph Norman, overseer of roads, stated that
he had given permission to remove the sand, act-
ing upon discretionary powers given him by Mr.
Lister, the former inspector.
Mr. Hirsch, the defendant, examined by Mr.
Schreiner, stated that since 1881 he had been
getting sand from different parts of the embank-
ment all along the road. He had no permission
from the Divisional Council. Mr. Lister, the
former inspector, had always told him where he
oould get the sand from. No damage had been
done to Dr. Gill ; on the contrary, his property
had been improved.
This closed the evidence.
Mr. Schreiner, for the defendant, contended that
the property in the road was vested in the
Divisional Council, and that it was for the Court
to define the fair limits of the road. He referred
the Court to Acts 27 of 1884 and 40 of 1889, and
submitted that this action would never have been
brought were it not that a certain amount of bad
feeling existed between the parties, the maxim de
minimis non curat lex applied, and the Court ought
to take that view of the matter.
The Court, without calling upon Sir T.
Upington, gave judgment for the plaintiff, made
the interdict perpetual, and awarded £10 damages
and coBts.
SUPREME COURT.
MONDAY, FEBRUARY 23.
[Before the Chief Justice (Sir J. H. DE VILLIERS,
Mr. Justice Smith and Mr. Justice
Buchanan.]
robertson v. robertson.
Mr. Graham for the plaintiff; defendant in
default. This was an action instituted by Mr.
William James Robertson against his wife Emma
Violet Scott Robertson (born Brown) for divorce
by reason of her adultery with one Julius Hacker.
The Court, after hearing the evidence of Mr.
Robertson, granted the decree as { rayed for, gave
the plaintiff the custody of the child — the only
issue of the marriage — and ordered the defendant
to forfeit all benefits under the marriage contract.
IN THE INSOLVENT ESTATE OF MESSRS. DE
WAAL AND CO.
On the application of Mr. Molteno, Mr. Petrus
Jacobus Bosman was appointed provisional
trustee, with power to carry en the farming opera-
tions in the estate.
D'ARC Y. BENSON AND MCDERMOTT.
Interdict restraining sale of effects attached
by Deputy Sheriff pending decision of
Court as to property in said effects.
Mr. Searle, on behalf of Mr. Brodaak, applied
$£
for an interdict to restrain the sale of defendants 1
effects at present attached by the Deputy Sheriff
of Uitenhage under an order of the Supreme
Court, on the grounds that the property in ques-
tion, which consisted chiefly of roller skates, had
been sold to Mr. Brodziak before the order of the
Court had been made.
The Court granted a rule nisi restraining the
tile pending the decision of the Court as to the
property in the goods in question, one copy of the
rule to be f erred on the Deputy Sheriff of Uiten-
hage and the other on D'Arc.
KUUN V. SCHALKWYK.
Negligence — Bursting of Dam — Vis major.
Mr. Schreiner and Mr. Graham for the plaintiff.
Mr. Searle and Mr. Watermeyer for the
defendant.
This was an action instituted by Lourens Chris-
tian Kuttn against the defendant Gerrit Duikse
van Schalkwyk, for £150, damages alleged to have
been sustained by the bursting of a dam on the
defendant's farm. Both the parties are farmers
redding in the district of Victoria West, and are
owners of adjoining properties. On the 30th
October, 1890, a dam, which had been built for
about thirty years and was situated on Taaibosch-
fontein, the defendant's farm, burst owing to an
unusually severe storm and consequent rising of
the river. The water issuing from the dam
rushed down with great violence on to the farm of
plaintiff (Grootfentein). The walls of plaintiff's
garden were carried away, the garden itself and
the lands under cultivation were inundated, and
his water-furrow considerably injured. In respect
of these injuries damages were claimed. The
defendant, in his plea, admitted the bursting of
the dam, but denied that it had been occasioned
through any fault of his, and pleaded that he was
not liable for the act of God or Vis major.
Mr. KtiUn, examined by Mr. Schreiner, gave
particulars as to the bursting of the dam and the
rush of water on to his land. With regard to the
amount of damage which he had sustained he
calculated that it would cost 2s. a yard to rebuild
his wall, injury amounting to £20 had been done
to his furrow, £10 had been expended in repairing
the wall at the river, and he could not value his
vegetable garden at less than £10 ; he had also
lost considerably over his crop of wheat.
Cross-examined by Mr. Searle : His sluice was
broken on the 80th October, between four and five
pjn. On the 4th November the field-cornet came
sad assessed the damages. He said then that he
estimated the damages at £25. He did not at that
time, however, knew that his wheat had been
injured. He did not remember the field-oornet
giving him a paper on which the damage had been
assessed at £16.
Mr. Auret, examined by Mr. Schreiner, stated
that he was a land surveyor, residing in Victoria
West, and had prepared the plan put in. The
depth of the water at the wall was about. 12 feet,
allowing 6 feet of silt. The dam had not been
repaired when he saw it. The length of the break
in the wall was about 60 feet. He had had ex-
perience in dams, but had never constructed any.
Cross-examined by Mr. Searle : He had only
made a rough sketch. He did not measure the
main stream at any point.
Several other witnesses having corroborated the
plaintiff's evidence with regard to the damage,
Mr. Jacobus Schmid stated that he had been at
one time part owner of Grootfontein. He had
seen the damage which had been done, but could
not estimate it.
Cross-examined by Mr. Searle: He knew that
Mr. Levenberg had assessed the damage at £16,
but witness could not say if that were a fair
valuation.
In answer to the Court, witness could not say
whether the inundation of the lands had produced
rust.
SUPREME COURT.
TUESDAY, FEBRUARY, 24.
Before the Chief Justice (Sir J. H. DB
VlLLIERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.
KUUN V. SCHALKWYK.
The further hearing ef this case was resumed.
Mr. Schreiner, and Mr. Graham, for plaintiff.
Mr. Searle, and Mr. Watermeyer, for the
defendant.
John George KttUn, attorney-at-law, examined
by Mr. Schreiner, stated that he had been on the
farm Grootfontein a few days after defendant's
dam had burst. The water had washed above the
sluice wall. The sluice was being built up when
he saw it. Three sides of the garden wall had been
damaged, and 184 yards in all had been washed
away.
Cross-examined by Mr. Searle: He was in-
structed to write to defendant, olaiming £150
damages some time after he had visited Groot-
fontein. He had heard that the field-cornet had
been to the farm, but he had not received the
paper referred to in Mr. KUUn's evidenoe. Witness
had been a farmer before he became an attorney,
but he had no experience in building walls.
This ooneludsd the evidence for the plaintiff.
f 1
56
Mr. G. D. van Sohalkwyk, the defendant,
examined by Mr. Searle, Btated that he had been
the owner of the farm Taaiboschfontein for fifteen
yean. It was a large farm, in extent about 8,200
morgen. He had several dams in his farm. About
twelve years ago he increased the Taaibosch-
fontein dam by about 20 yardB in length and 4 feet
in height. The dam could contain 3 feet 2 incheB
ef water. His house was situated below the dam,
and further down were cultivated lands and kraals.
On the 80th October last the dam burst. A
fearful storm passed over his farm between five
and six p.m. on that day. He had never seen a
more severe storm in that part of the country ;
patches of the veld were washed away, his furrows
were injured, and about 1 00 feet of the top of his dam
were carried away. On the following Saturday he
received a letter from Mr. Kuttn claiming damages.
On Thursday, 30th October, before his dam burst
there was a torrent of water rushing down the
main furrow. He had alwayB kept his dam in
good repair, and in the month of February
preceding the accident he had had his dam
thoroughly overhauled and repaired. No com-
plaints bad ever been made as to the state of his
dam. He had frequently seen the sluice on
plaintiff's farm as he was riding along the road ;
the top of the sluice used to be lower than the
banks of the river, but lately it had been built
higher. To witness's knowledge the sluice had
been washed away several times, and this had
happened four times during the occupation of the
farm by the plaintiff, that is within the past four
years. In answer to the Court, the witness
further stated that the water from his dam would
probably have reached the plaintiff's farm about
8.30 on the evening of the 80th October. Last
year his crops and his neighbours' had suffered
from rust. When he first saw Kttlln after the
acoident the latter estimated his damage at £25,
but subsequently witness received a letter of
demand for £160.
Cross-examined by Mr. Schreiner : The storm
appeared to pass over Taaiboschfontein and Groot-
fontein, but most of its force was expended on
witness's farm. None of Mb stock had been
injured by the storm. He had his evening meal
between eight and nine. The dam burst before
this hour. His house was situated about 600
yards from the dam.
Several witnesses having corroborated defen-
dant's evidence,
Mr. Levenberg (field-oornet), examined by Mr.
Searle, stated that he lived about twelve miles
from plaintiff's farm. On the 4th November he
received a letter from Mr. Ktttin, asking witness
to come to his farm and assess the damage which
had been occasioned by the bursting of defendant's
dam. Witness assessed the damage at £16, and
Ktiiln appeared satisfied with that amount. Ho
had measured defendant's dam after the accident.
It was 29 feet at the base and 4£ feet at the top
He considered the dam had been substantially
built. His wheat had suffered from rust this year.
In answer to the Court, witness stated that he
was of opinion that if the sluice were not in its
present position, and the bank of the river were in
its natural state, the plaintiff's land would not
have been inundated.
Cross-examined by Mr. Schreiner : In estimat-
ing the damage he had allowed for the destruction
of 160 yards of wall, for re-erecting the sluice, and
for repairing the furrow. He had not seen de-
fendant's dam before it had burst.
Frederick Manuel stated that he was in Mr.
Kttun's employment last year, but at present he
was in the service of the defendant. He was
present when the sluice was washed away. It was
about half-an-hour before sunset. After the sluice
had been washed away he went to oolleot the
cattle.
Cross-examined: He left plaintiff's service
about a month ago. He had been in the " tronk "
on a charge of having poisoned his wife, but had
been acquitted at the trial. The information on
which he was arrested had been lodged by plain-
tiff He remained in the house during the
rain. He afterwards went to look at the sluice,
and found that it had been washed away.
Re-examined : After he had been acquitted he
was for a year in the service of the plaintiff.
The evidence of Mr. Smid closed the case for
the defendant.
Mr. Schreiner having addressed the Court,
The Chief Justice, without calling upon Mr.
Searle, remarked that he was clearly of opinion
that the injury sustained by the plaintiff had been
caused, not by the bursting of the defendant's dam
but by the swollen condition of the river conse-
quent on an unusually severe storm. All the facts
were in defendant's favour, more especially with
regard to the time when the land was flooded.
The water from the dam could not have reached
plaintiff's land until about 8.30 p.m., whereas the
plaintiff swore that his sluice had been washed
away between four and five p.m. The plaintiff's
case had wholly failed, and therefore judgment
would be for the defendant with costs.
MACKIE DUNN AND CO. V. THE POTCHEff-
8TBOOH EXCHANGE COMPANY.
Attachment of fluids in hands of Company
ad fundandam jurxsdictionem — Einwald v.
The German West African Company
(5 Juta 86) considered and followed*
Mr. Schreiner moved, on behalf of Messrs.
Mackie, Dunn <k Co., of Port Elizabeth, for an
i>7
order to attach the whole or part of £6,000 due
from the Commercial Union Assurance Company,
of Cape Town, to the Potchefstreom Stock
Exchange Company (Limited), in order to found
jurisdiction in an action abont to be brought by
the applicants for the recovery of £264 14s. 3d.,
with interest from July, 1890, being a debt
originally owing by the defendants to one Falkiner
in part payment of the contract price for erecting
the exchange, thereafter assigned to one Selinger,
and by the latter ceded to the petitioners. The
applicants stated that their debt was wholly un-
secured, and haying learnt that £6,000 was owing
by the Company on a fire policy, desired to attach
it
The Chief Justice remarked that the mere fact
that there was property in the country belonging
to the defendants did not give jurisdiction.
Mr. Schreiner submitted that inasmuoh as the
defendant Company had entered into a contract
within the jurisdiction, namely in Cape Town,
with the Commercial Union Assurance Company,
that was sufficient to enable the Court to grant
the order applied for.
The Chief Justice said that the plaintiffs might
adopt the course of saying to the Insurance Com-
pany that if they paid the claim out of the
£6,000 they would indemnify them.
Mr. Schreiner said the Assurance Company
would not do this without an order of Court.
The Chief Justioe, in refusing the application,
laid as at present advised he could not distinguish
this application from that of "Einwald v. The
German West African Company," where the
Court went fully into the law. For the present the
application must be refused, but if Mr. Schreiner
could find any authorities showing that a distinc-
tion existed between the case of a person saing on
the original contract and a person suing as
cessionary and being domiciled in the Colony, he
would still be at liberty to apply again.
PREI88 Y. GLUCKMAN.
Action— Postponement of in consequence of
unavoidable absence of defendant — Pay-
ment of tender.
Mr. Schreiner, on behalf of the defendant,
applied to have the case which is set down for
trial on the 27th instant postponed, owing to the
defendant being in the Free State.
Mr. Juta opposed the motion, on the grounds
that the defendant had had ample notice of the
date of trial.
The Court granted the postponement on condi-
tion that the defendant immediately paid to the
plaintiff £42 14s. 10d., the amount of his tender,
and the costs ef the present application.
I
CAMPAAN V. CAMPAA7*.
Mr. Jones moved on behalf of Louisa Frederika
Campaan, at present living at Xalanga, Tembu-
land, for a decree of restitution of conjugal rights
against her husband, John Hawkes Campaan, at
present living at Middelburg, in the Transvaal.
The parties were married at Dordrecht in
November, 1885, and lived together about six
weeks, when the husband deserted his wife, whe
had never seen him since. She had asked him to
come back, by letter, but he had refused.
The Court granted the decree, the defendant to
return to his wife, or receive her, on or before the
81st March, failing which to show cause on the
first day of next term why a decree of divorce
should not be granted.
WALKER V. THE GAPE CENTRAL RAILWAYS.
Sir T. Upington, Q.C., and Mr. Juta for the
plaintiff. Mr. Schreiner and Mr. Graham for the
defendant company.
This case which was to have been tried to-day
before the Chief Justice and a jury, was, on the
application of Sir T. Upington (to which Mr
Schreiner consented), postponed till the 14th
April. The names of thirty-six jurymen who had
been summoned were read over and answered to ;
of these, twenty were struck off the list, and the
remaining sixteen reoeived notice to present them*
selves on the morning of the 14th April.
THE GAPE OF GOOD HOPE BANK (IN
LIQUIDATION.)
Mr. Schreiner, on behalf of the liquidators of
the above bank, applied for an order confirming an
arrangement which had been entered into with
Mr. James Wroe, of Potohefstroom, who it appears
owes the bank £8,000. Against this amount the
liquidators hold securities to the nominal value of
£1,821. The liquidators propose, in addition to
these securities, to accept the sum of £900 in full
discharge of Mr. Wree's indebtedness.
Confirming order granted as prayed for.
WRIGHT V. WILLIAMS.
This case, which had been postponed from the
11th inst., came on for further hearing.
Sir T. Upington, Q.C., appeared for plaintiff ;
the defendant in default. The action was for
damages on the grounds of defendant's alleged
fraud and misrepresentation.
Captain John Spenoe stated that he was the
agent of Daniel de Pass, and knew both plaintiff
and defendant. He had given evidence in the
former case, which had been tried before Mr.
Justice Smith, Williams had no authority from
him to enter into a contract with defendant with
5,8
regard to the "lay," his authority only extended to
the question of wages. He had been summoned
to produce all documents in his possession relating
to the engagement of seamen. Witness then
explained to the Court that formerly mates in the
service of Mr. De Pass used to receive £2 a month
and " lay," and ordinary seamen £1 a month and
" lay." This system of paying the men was found
not to answer, and the present system was then
adopted, under which all men employed by the
firm receive monthly wages, and are not entitled
to " lay " unless they have been specially recom-
mended for it, and then it is only given as a
gratuity. The plaintiff had been very unfavourably
reported upon by Captain Williams, but on
witness's suggestion his wages, and an ordinary
seaman's proportion of " lay," amounting in all to
about £88, were offered to him, but would not be
accepted, the plaintiff claiming £72. Plaintiff
then brought an action against De Pass for £72,
but only got judgment for £23 odd, the Court
holding that as no mention had been made of
" lay " in the shipping articles, plaintiff was only
entitled to his actual wages.
Sir T. Upington, addressing the Court on behalf
of the plaintiff, contended that there was perfectly
clear evidence that the defendant had fraudulently
induced the plaintiff to enter into a contract which
he (defendant) had no authority from De Pass &
Co. to make. Counsel in his argument referred to
the oases of " Callen v. Wright," 7, E. <k B. 801,
" Cherry v. The Colonial Bank of Australasia," 3,
P.C.B. 24, and " Richardson v. Williamson," 6, Q.B.
276, and submitted that under all the circum-
stances of the case plaintiff was entitled to
judgment.
The Chief Justice remarked that the Court
laboured under a certain amount of difficulty,
owing to the absence of the defendant, who might
be able to put quite a different complexion on the
whole matter. Under the circumstances the
Court would take time to consider.
SUPREME COURT.
THURSDAY, FEBRUARY 26.
Before the Chief Justice (Sir J. H. DE VlLLIERS),
Mr. Justice Smith, and Mr. Justice
BUCHANAN.
PROVISIONAL ROLL.
EXECUTORS 07 DE KLERK Y. DE KLERK.
In this matter, whioh was before the Court
od the oth February, provisional sentence
was refUsed on the grounds that the
defendant had denied his signature.
Sir T. Upingten, Q.C., on behalf of the execu-
tors, now moved for provisional judgment on a
mortgage bond for £3,500.
Mr. Juta opposed the motion.
It appeared from the affidavits read by counsel
that a certain farm known as Kafir's Kraal,
situated in the district of Victoria West, had been
sold by Jan Abraham de Klerk to his son,
Johannes Abraham de Klerk, and a mortgage
bond in respect of this transaction had been given
by the son, who now contended that the farm had
never been sold to him, that he had signed the
bond in ignorance, and finally that there had been
no consideration for the bond.
The Chief Justice, on the conclusion of the
argument, said there was no doubt there had been
a mistake in transferring to Jan Abraham de
Klerk the father, instead of to Johannes Abraham
de Klerk, the son. The latter had had consideration,
for he had been living on the farm, rent free,
from 1884. He also pointed out that "Jan" was
Dutch, and " Johannes " was the ancient Latin
form of the same name, therefore they were
practically one. In an endorsement of the bond
by the father, he found that on account of the
depressed condition of the Colony the father had
directed that his son was not to pay interest on
the bond. The oase had been postponed until
to-day, because the defendant had denied his
signature. Now he admitted the signature, but
said that he did not understand its meaning. He
thought the explanation was wholly unacceptable.
It was quite clear from the power-of-attorney that
he treated the property as his own, and that he
passed the bond for £3,500 by which the property
was mortgaged. It appeared that the bond covered
cash advanced, which was the reason why it
amounted te £3,500, more than the purchase price of
the property itself. The only point made by the
defendant was the fact that the father had him-
self made an application to the Government for
an adjoining piece of land, in which application
he treated the land as his own. The father
unfortunately was dead. Mr. Juta contended that
his client's name was Jan, and the transfer was in
favour of Johannes. Well, the two names were
virtually the same. The executors did not claim
the land on behalf of the father's estate, and they
were now prepared to relinquish all right to it,
and on this condition provisional sentenoe would
be granted against the defendant, property to be
executable.
IMPEY, WALTON AND CO. V. EDGAR PERKINS.
On the application of Mr. Tredgold, provisional
judgment was granted for the sum of 21 5s. 3d.
REHABILITATION.
On motion from the bar, the rehabilitation of
Eliza Bloam was granted.
59
THE PETITION OP JOHN LEVATT.
On the application of Mr. McLachlan, per-
mission was granted to applicant to sue in forma
pauperis in an action against his wife for divorce.
IK THE INSOLVENT ESTATE OF JAN H.
ENGKLBRECHT AOKEBMANN.
Mr. Graham moved for authority to the Master
to take proceedings for the appointment of a new
trustee to the said estate, in order to cancel a bond
which had been paid off, or for the Registrar of
Deeds to cancel such bond.
The Court granted the order empowering the
Master to take proceedings for the appointment
of a new trustee.
WILSON V. WILSON AND ANOTHER.
On the motion of Mr. Juta, the Court made
absolute the rule nisi admitting the applicant to
defend in forma pauperis the action for divorce
instituted by her husband.
VAN ZYL AND OTHEBS V. EXECUTRIX DE BEEB.
Mr. Bearle appeared for the applicants, and Mr.
Schreiner for the respondent.
This matter, which was an application for an
interdict to restrain the respondent from obstruct-
ing the flow of water in a furrow leading from the
farm Matrooaf ontein to Wittedrift, in the district
of Piquet berg, was, with consent of counsel en
both sides, ordered to stand over till the 12th
March.
II THE INSOLVENT ESTATE OF CHBISTOFFEL
J. VILJOEN.
Where the Court has appointed a Provi-
sional Trustee the appointment will not be
Bet aside unless at a meeting of creditors
one or more trustees are elected.
This was an application by Mr. Searle for the
appointment of Mr. Henry Nutall Chase as co-
trustee with Mr. Harry Gibson.
Mr. Schreiner, who appeared for the provisional
trastee, Mr. Harry Gibson, opposed the applica-
tion.
The Chief Justice, in giving judgment, said
there seemed to him to be no special circumstances
to justify the Court in departing from the
established practice. Upon the last oocasion the
impression on his mind was that if a fresh election
were ordered trustees would be elected, and that
there would be a majority in number as well as in
value for one or more trustees. The result was
duftrent. The ordinary rule was for the Court
to authorise a provisional trustee to finally
administer the estate. There were no special
circumstances to justify the Court in departing
from that rule. Mr. Gibson lived in Cape Town,
but the estate was not a large or difficult one to
administer. Certainly the case showed that in
future the Court should make some inquiries
before appointing a provisional trustee, and he was
bound to say that if Mr. Chase had also applied
when the provisional trustee was appointed, the
Court might have given preference to him. How-
ever, as Mr. Gibson had been appointed, the rule
would be adhered to, Mr. Chase to pay costs of the
day.
DUNA V. BABENKOLA AND ANOTHEB.
Mr. Schreiner appeared for the applioant ; Mr.
Juta for the respondent ; and Mr. Giddy for the
Resident Magistrate of Glen Grey (Mr. Jenner).
This was an application to show cause why an
action adjudicated upon by the Resident Magis-
trate of Glen Grey should not be brought under
review of the Supreme Court on the ground of
irregularity and non-jurisdiction.
Mr. Schreiner suggested that as the record was
before the Court the case might be heard as
though under review.
Mr. Giddy remarked that he was not at present
prepared to argue the oase on its merits.
The matter was allowed to stand over.
VAN HEEBDEN V. THE VICTOBIA WEST
MUNICIPALITY.
On appeal from the Resident Magistrate of
Victoria West.
Ordered to stand over.
BOSSOUW V. BOSSOOW.
Mr. Castens having obtained an order making
absolute the rule nisi admitting the applicant to
sue in forma pauperis in an action against her
husband for restitution of conjugal rights, failing
which for divorce, called the plaintiff, who stated
that Bhe was married to the defendant, Francois
Albertus Rosseuw, in 1875, at Robertson. After
having lived with plaintiff for six years, the
defendant deserted her, and was, she understood,
at present living in Barberton. She had frequently
written to her husband asking him to return, but
he had taken no notice of her letters.
In answer to the Court, the witness stated that
she wished to retain the custody of the four
children, the issue of the marriage.
The Court granted a rule nut calling upon the
defendant to show cause why he should not return
to his wife or receive her on or before the 1st of
May, failing which to show cause on the first day
ef next term why a decree of divorce should not
be granted,
60
HULBEBT V. C A PORN AND MARRIOTT.
«
Goods — Purchase — Repudiation by buyer.
Mr. Schreiner and Mr. Sheil for the plaintiff.
Mr. Jnta and Mr. McLaohlan for the defendants.
This waa an action instituted by Messrs. Hulbert
<& Co., mantle, trimming, and umbrella manufac-
turers of Wood-street, London, against Messrs
Gaporn & Marriett, linendrapers, of Plein-etreet,
Cape Town, for £148 12s. 6d., balance of account.
The defendants denied that they had purchased
oertain 102 garments described in the invoices as
" Garricks," and tendered £89 8s. 9d., the balance
of acoount less the cost of the " Garricks " and the
expenses connected with importing the same.
The evidence of the plaintiff's witnesses, wbich
was taken on commission in London, having been
read,
Mr. Juta called Mr. Arthur Leeson Caporn, who
stated that he was in London in September, 1889.
His brother and himself went to Messrs. Hulbert
6l Co.'s establishment in Wood -street, and were
there introduced to Mr. Nisbit, the manager ef the
mantle department. He bought several parcels of
goods, including a number of " VisiteB," but he
never ordered any " Garricks," in fact, he did not
know what they were until he had opened the
cases. He met Mr. Tipper in June, 1889, on the
voyage to Bngland. He made ' an appointment
with Mr. Tipper on the same day that he had
bought the goods from Hulbert & Co., and brought
him to look at his purchases. Mr. Tipper said the
goods were all right. He left Bngland in the
Nubian on the 13th September, and arrived in
Cape Town on the 7th October. The goods arrived
a month or so after. When the cases were opened
he saw the "Garricks" for the first time. He
gave instructions to have them placed on one side,
and directed that they should not be marked er
shown in the windows. Mr. Tipper called at his
shop in January. He rejected the " Garricks,"
because he had not ordered them, and besides they
were old-fashioned, and unBuited for the South
African market. He made an entry of the goods
be had bought from Hulbert & Co. in his' pocket-
book, but he had lost this book, he thought, at a
furniture sale. He had never heard the terms
" Garricks " applied to mantles.
Cross-examined by Mr. Schreiner : His brother
might have heard the word " Garricks," but he
(witness) did not. He might have looked at fifty
samples the day he was at Hulbert <fe Co.'s ware-
house. He had kept other articles which he had
not ordered. He purchased a large number of
" Visites " to clear. There were other customers
buying on the same day. The mantles produced
are the same aB those sent to England. (At this
stage of the proceedings considerable amusement
was caused in court by the production of a number
of the " Garricks " and " Visites," some of which
were fitted on by one of the lady witnesses.) The
ten mantles whioh he had bought he showed to
Mr. Tipper. He simply bought the mantles as
garments without any specifio name being given to
them. These ten mantles had been sent up-
country, he thought to Bloemf ontein. B e could
not say when the first lot of goods arrived. They
might have oome to hand on the 26th November.
When goods arrived they were immediately oleared,
and sometimes kept for months in the store before
they were opened. He agreed to give a six
months 1 bill for the first parcel of goods, the
second was an open account. He was of opinion
that the "Garrioks" had been wilfully packed
into the cases. He thought he lost his pocket book
at a sale of furniture. He did not look for the
book until he had reoeived the plaintiffs' letter.
— Re-examined by Mr. Juta: the ulsters were
invoiced as ulsters. "Toscos" were small capes
covered with beads.
Mr. Loton Tipper, examined by Mr. Juta,
corroborated the statements by last witness with
regard to seeing the goods that had been purchased
from Hulbert & Co. He could not remember
having Been the " Garricks."
Miss Bywater and Miss Hastings, assistants in
Messrs. Caporn & Marriott's establishment, were
also examined, and expressed their opinion that
the " Garricks " were antiquated and unsaleable.
The latter lady volunteered the information that
she had seen a similar garment worn by her
grandmother.
After hearing counsel, the Chief Justice inti-
mated that the Court would take time to oonsider
whether they would require to hear any further
arguments.
SUPREME COURT.
FRIDAY, FEBRUARY 27.
[ Before the Chief Justice (Sir J. H. DB VILLIEBS,
Mr. Justice SMITH, and Mr. Justice
BUCHANAN.]
HULBEBT V. CAPORN AND MARRIOTT.
Mr. Schreiner and Mr. Sheil for the plaintiffs.
Mr. Juta and Mr. MoLachlan for the defendants.
Mr. Juta having concluded his address to the
Court,
The Chief Justice, in giving judgment, remarked
that there had been a great conflict of testimony
in the case. The evidence of plaintiff's witnesses
given on commission in England, was quite con-
sistent with the facts of the case, whereas the
evidence of the defendants and their witnesses did
61
not agree. Under these circumstances he was of
opinion that the probabilities were all in favour of
the plaintiff. Judgment weald therefore be for the
plaintiff for the full amount claimed with all the
oosts incurred both in the Oelony and in England.
BOOSE V. WOO DH BAD AND OTHERS.
Lihel — Damages — Company — Meeting of
shareholders — Directors' Report — Publica-
tion.
Mr. Juta and Mr. MoLaohlan for the plaintiff.
Mr.Schreiner and Mr. Graham for the defendants.
Thia was an action for libel, instituted by Mr.
Frederick Henry Boose', until recently secretary of
the Cape Town Stock Exchange and Investment
Company (Limited), against Mr. John Woodhead,
Mr. William F. Simkins, Mr. John Ross, Mr.
George Behr, Mr. Melt Roux, and Mr. John Scott,
directors of the above-named company. Damages
were laid at £500. It appeared, from the opening
statement of counsel, that on the 28th March, 1890,
a meeting of the directors and shareholders of the
Stock Exchange was held, and at this meeting a
certain report was read, and afterwards published
in the Cape Timet and Cape Argus. This report,
the plaintiff contended, contained the libel com-
plained of, the libellous words being to the follow-
ing effect : " Tour directors in taking this course
have not dismissed him (meaning the plaintiff)
principally upon the charges above referred to,
but consider that Mr. Boose', in dealing illegally
with the funds of the company, not only justified
them in taking this measure (meaning plaintiffs
dismissal aa secretary), but they have instructed
their solicitor to place the papers in the hands of
the Attorney-General, from whom they expect to
hear daily."
The defendants admitted the publication com-
plained of, but pleaded that the occasion was
privileged, that the publication was made without
malice, and in the bona fide discharge of their
duties as directors, that it did not bear the con-
struction put upon it by the plaintiff, and that it
was true in substance and in fact.
Frederick Henry Boose', the plaintiff, examined
by Mr. Juta, stated that he was the promoter of
the Stock Exchange, and as such the directors
voted him a salary of £600 per annum, and 100
fully-paid-up negotiable shares of the company.
The Exchange was carried on in 1889 and 1890,
having been started in February, 1889. In the
early part of 1890 certain complaints were made
against witness by Messrs. Scott & Armstrong, and
the matter came to the notice of the directors.
Mr. Schreiner here asked the ruling of the Court
as to alleged charges made against the plaintiff,
other than the alleged libel complained of.
Mr. Juta said he should refer to them for the
purpose of proving malice. *
The Court ruled the evidence to be admissible
and intimated that Mr. Schreiner could bring
refuting evidence.
Witness (proceeding) said a resolution was passed
calling upon him to withdraw certain statement
respecting Messrs. Soett & Armstrong, and stating
that the directors exonerated him from intent to
damage the interest of the oompany or anyone.
Mr. Schreiner pointed out that there was a
record on the minutes that the plaintiff did
apologise and retract.
Witness said he received no negotiable shares,
although he was given 100 reserves. The share-
holders, however, objected, and he returned them
in March, 1890. The account book of the oom-
pany was here produced, and witness said he had
kept the boek Early in January, 1890, about the
time of the annual meeting, a resolution was
passed by which it was proposed to give him a
"good-for" for 100 shares, equivalent to those
voted him on the formation ef the company. He
did not get the " good-for," but got 100 negotiable
shares in the oompany, whioh, aB he had stated, he
afterwards returned. He accepted them under
protest, as he should have had them earlier. They
were worth nothing practically when hegot them.
In February, 1889, they were worth £1 eaoh, and
went up afterwards to 67s. 6d.
Mr. Juta remarked that he might simplify the
case by stating that the whole case turned upon
the fact that plaintiff drew money against the
value of the shares he was about to reoeive, and
posted it in the books, and it was upon this
action that the directors based their allegations.
Plaintiff's contention waB of course that he should
have had the shares earlier.
Witness (preceeding) said that the oompany
was financed as best it could be, because it had no
funds. The account at the bank was overdrawn
by £1,800 in October, 1889. They could overdraw
to that amount. Witness therefore had to finance
the business out of the bar takings and the sub-
letting of Renter's cables. The £5,000 of the
paid-np capital was lost in speculation. The
directors over-speculated.
The Chief Justice: Who was the company's
speculator ?
Witness: Mr. Melt Roux, my lord. (Laughter).
But for witness's management the company would
have gone into liquidation long ago. The Invest-
ment Branch was a subsidiary oompany, the
directors of which were also the directors of the
Steck Exchange. (Laughter). They used to
borrow from the subsidiary oompany. On
Deoember 14, 1889, his account of £100 or 100
shares, after having been transferred from one
account to another, was put on the profit and loss
account. This was done by witness^
62
The Chief Justice : Did yon get the money ?
Witness: I got £90.
The Chief Justice : And the remaining £10 ?
Witness : That is still standing to my oredit.
(Laughter).
The Chief Justice : Did they know yon had the
£90?
Witness : I did'nt consider it necessary to tell
them.
Mr. Justice Buchanan : Where did you get it
from?
Witness : Out of the takings.
Mr. Justice Buchanan : Not by oheque ?
Witness: We oouldn't draw a cheque.
(Laughter.)
Mr. Justice Smith : In point of fact, all debts
were paid eut of the takings of the bar ?
Witness: We satisfactorily sub-let our cable.
The business was conducted on cash principle* as
regarded receipts and payments after the over-
draft had been made.
Mr. Schreiner : Not much payment.
Witness (continuing) said Messrs. Eilenberg A
Boalch made oertain charges against him, not
connected with money matters, but respecting his
fidelity as secretary to the company.
Mr. Schreiner again raised the question of the
admissibility of other charges than the alleged.
Mr. Juta said he should prove by them that there
was malice. In point of fact, the directors wanted
to get rid of plaintiff, and appoint someone else .
The correspondence was then put in, from which
it appeared that the charges were that plaintiff
had attempted to establish another Exchange
whilst he was secretary of the company, had soli-
cited support from the shareholders, and had
generally falsely represented the finanoial position
of the company, and tried to damage its credit.
Witness produced the scrip of the shares
acoepted by him under protest. They were value-
less. He was suspended on Maroh 6, 1890. Sub-
sequently he received a letter making a charge of
fraud and dishonesty, and calling upon him to
refund the money, to which he replied requesting
an adjustment of the account between them in
respect of the shares, and asking for certain in-
formation from the books, without which he could
not reply in full. Extracts were supplied him
after the shareholders' meeting on the 28th Maroh,
1890. About this time he was not on friendly
terms with Messrs. Scott & Roux on aocount of
what he considered their underhand dealings as
regarded the company and dealings in shares. The
result of the slanders upon his character had had
the effect of keeping him out of permanent
employment.
Cross-examined by Mr. Schreiner : At present
witness was in the employ of Mr. Du Preez.
Would not say that entries of receipts and pay-
ments were made at once. The books were posted
every week. The entry of £90 was made early in
February. The money was drawn in January.
The books had never been out of the possession of
the company. The slip of paper produced related
to the £90. The auditors did not take the books
away. On the 27th January, 1890, the auditors
did not question the item of £100 credited to
witness. Mr. Lippert knew he had withdrawn
£90, but no one else knew until he told Mr. Ross.
He did not beg Mr. Ross not to mention it, nor
did he ask him to lend him £90 to make it up. He
made no reference to getting value for his shares
for ten months. Mr. Schreiner was proceeding to
cross-examine witness upon the accounts, when.
The Chief Justice asked if he were going to
prove want of malice ?
Mr. Schreiner : It is proved that there was every
reason to come to the conclusion that Boosts con-
duct required the censure put into the report.
The Chief Justice thought that or the plaintiff's
own evidence there was no proof of malice. The
communication was privileged, and the only
question that had to be decided was whether the
publication in the newspapers was by the order of
the defendants, or if it were, whether there was
malice or not ? He was somewhat surprised at
Mr. Juta going into such details as he had. He
should have thought he would only have proved
the libel. There was no plea of justification.
Mr. Justice Smith : You want to prove that this
gentleman drew £90 without authority, and that
is proved over and over again.
Cross-examination continued : The £96 was
shown by him on a certain, account to be £40 for
salary and £50 for shares, although he admitted
that when he was suspended nothing was due to
him for salary. —
Mr. John Henry Blenkin stated that he was a
reporter on the staff of the Cape Argus. He re-
membered attending the meeting of the 28th
March, when he was informed that it was private,
and that reporters would not be admitted. He
was subsequently sent for, but he did not bear the
report read. The report was handed to him by
either Mr. Woodhead or Mr. Twycross, and was
afterwards published.
Mr. Cornelius Bartholomew, a reporter on the
staff of the Cape Times, corroborated the evidence
of the last witness.
Mr. P. O'Dowd stated that in his opinion the
directors were opposed to the publication of the
report.
Mr. Henry J. C. Ross stated that he would have
taken the plaintiff into partnership were it not for
the publication of the report.
The Chief Justice : Has the plaintiff suffered
much loss by your not having taken him into
partnership ?
The witness, after some hesitation, stated that
he had.
63
Mr. Schremer then submitted that the news-
paper*, and not the directors, were liable for the
libel.
The Chief Justice obserred that it was open to
them to object at the meeting to the publication
of the report, and they did not do so. He further
remarked that, nnder any circumstances, the
plaintiff could only recover nominal damages, as
the libel had been sufficiently published before it
get into the newspapers.
Mr. B. R. Syf ret having given evidence as to
the auditing of the company's books,
Mr. Sohreiner called Mr. John Rosb, one of the
directors, who detailed the circumstances under
which the company was established, and gave the
substance of a conversation which had taken place
between himself and the plaintiff relative to the
£90. Witness was positive that plaintiff had
asked him not to mention the £90 transaction, and
that he (plaintiff) had asked witness for a loan of
£90 to replace the money which he had taken.
The other directors having been examined, and
counsel having addressed the Court,
The Chief Justice remarked that it was evident
the plaintiff had sustained no damage by the
publication of the report. But even if he had
suffered damage, judgment could only be given
against the director who had authorised the
publication of the report. There was evidence
that Mr. Woodhead had handed the report to one
of the reporters. Judgment would be for the
plaintiff against the first-named defendant for one
»*"""»g damages, each side to pay its own costs.
STJPREME COURT.
SATURDAY, FEBRUARY 28.
[Before the Chief Justice (Sir J. H. DE
VILLIERS), Mr. Justice Smith, and Mr.
Justice Buchanan.]
BOOSE V. WOODHEAD AND OTHERS.
The Chief Jnstice said there must be some
addition to the judgment which was given yesterday
against Mr. Woodhead for a shilling, each party to
pay his own costs. There must be some jadgment
in regard te the other defendants, and it would be
of " absolution from the instance," but the rest of
the order would of course stand, namely, that each
party pay his own costs. The judgment was some-
what hurriedly given, and he wished to make it
perfectly clear that the reason why the other
defendants were absolved was this : It was really
a meeting of shareholders that was held, and a
majority of shareholders decided to admit re-
porters, and so far as the proceedings were con-
oernjd which took place at the meeting, he believed
that all the directors would be liable, because they,
knowing that it had b6en decided to be public,
ought to have ebjeoted to the report being read.
But the charge in the declaration was not publica-
tion at that meeting but in the Argun and Times,
and in respect of the publication in those news-
papers the evidence showed that the chairman of
the shareholders' meeting was the gentleman who
handed it over to the reporters, and the remaining
directors were not responsible.
IK BE SCHEEPEBS.
Clerk articled to Attorney — Application for
admission refused, applicant not having
passed the whole of his time under the
immediate supervision of his principal.
Mr. Sohreiner moved for the admission of Mr.
Jacobus Johannes Scheepers as an attorney-at-law.
It appeared from an affidavit read that the
applicant was duly articled to Mr. Attorney Van
Heerden, of Burghersdorp, in January, 1888, and
that he had served for the period required with
the exception of four months, during which time
he had managed Mr. Van Heerden's business at
Venterstad.
Mr. Schreiner asked that the period spent at
Venterstad by the applicant might be included in
that passed in Burghersdorp under his principal's
more immediate supervision.
Mr. Searle, who appeared for the Incorporated
Law Society, did not offer serious opposition, but
remarked that the society did not like oases of
this kind to be afterwards quoted as precedents.
The Chief Justioe said that if they granted this
application it would certainly form a precedent.
The Court suggested that the applicant had
better complete his service with Mr. Van Heerden
at Burghersdorp.
DANIEL H. W. WESSELS V. JOHANNES BASSON.
On the application of Mr. Graham, provisional
sentence was granted for the sum of £200, with
interest from the 18th July, 1890.
TRUSTEE ZULU BISHOPRIC FUND Y. GEBT H.
J. KRUGER.
Mr. Maskew moved for provisional sentence on
a mortgage bond for £680, with interest from 1884.
Provisional sentence granted, and property
declared executable.
FBANCIS J. WEB8TEB V. MABY AND HENBT
SOLOMON.
On the motion of Mr. Searle, provisional
sentence was granted for £280 6s. 8d., balance of
rent due.
« ; i
64
OMABURU GOLD-MINING AND EXPLORATION
COMPANY V. ISIDORE HIR6CH.
On the application of Mr. Shiel, previsions!
judgment was granted for £82 10s., and interest
a tempore mora, being the amount of six unpaid
calls on 110 p referent shares in the above company.
JOHAN VAN B. OA88LER V. POPPE. BUS80UW
AND CO.
On the motion of Mr. Molteno, provisional
judgment was granted in terms of consent.
ASSIGNEES MTBUBGH AND CO. V. EX ESTATE
J. P. DU TOIT.
On the application of Mr. Juta, order for seques-
tration was granted.
F. C. GEBICEE V. JOHAN C. G. H. LAMPRECHT.
Postponed until 12th March on the application
of Mr. Juta.
REHABILITATIONS.
On motion from the Bar the rehabilitation of
the following insolvents was granted: Pieter
Johannes Marais, David Roux, Albertus Petrus
Bernhardus van Niekerk, and Walter Moorcroft
Edwards.
GENERAL MOTIONS.
DUNA V. SABENKOLA AND ANOTHER.
Ordered to stand over until Monday.
IN THE MATTER OF THE MINOB JOHANNES
A. BOTHA.
On the motion of Mr. Schreiner, an order ef
Court was granted in terms of the Master's report,
and permission was given fer the sale and transfer
to the minor of certain landed property called
Vrendenberg, situated in the district of Fraser-
burg.
PETITION OF MARGARETHA A. RICHARDS.
Mr. Tredgold moved, on behalf of applicant, for
leave to sue in forma pauperis in an action to
be instituted by her for restitution of conjugal
rights.
Matter referred to counsel for his certificate.
PETITION OF ANNA J. FOURIE.
Mr. Molteno moved to make absolute the rule
nisi authorising the payment to petitioner of a
sum of money, awarded to hsr husband out of the
estate of his late father.
Order granted ; money to be paid personally to
applicant, and costs to be paid out of husband's
■hare of the estate.
IN BE THE MINOR EBDIN KEMPER.
Mr. Juta moved for authority to the Master to
continue certain quarterly payments towards the
maintenance and education of the minor out of the
funds devolving upon him from the estate of his
grandparents. Counsel stated that the minor went
Home some time age te study mining. He had
£15 per quarter out of a sum of money which
became exhausted. Since then £100 had been
placed to his credit, out of which payments would
be continued.
The Court granted the order.
IN THE MATTEB OF THE UNION BANK, IN
LIQUIDATION.
On the application of Mr. Schreiner, certain com-
promises submitted to the Court with the liquida-
tors' petition were confirmed.
THE UNION BANK, (IN LIQUIDATION,) IN
THE ESTATE OF THE LATE F. W. HOFMEYB.
Company— Bank in liquidation — Contribu-
tories — Deceased shareholder — Mutual
will — Part n ership — Condictxo indebiti — It
is not safe or proper for an executrix to
pay to herself as surviving spouse any
portion of the common estate until her
husband's shares in an unlimited company
have been transferred or the liability
entailed by their retention has been ascer-
tained and provided for.
Mr. Schreiner moved for authority to the official
liquidators of the above bank to place upon the
list ef contributories in respect of thirty shares
registered in the name of the said estate the name
of the widow, now married to one Kiver.
Sir T. Upington, Q.C., opposed the motion on
the grounds that Mrs. Kiver had never been a
shareholder in the bank, and contended that as
the community which had existed between
herself and her late husband was dissolved, upon
his death ; she could not be held liable for debts
which had not accrued prior to the date of
dissolution. The shares after the liquidation
remained in the estate of late F. W. Hofmeyr, and
the liquidators could have no remedy against the
widow, except in action for damages.
Mr. Schreiner, on the other hand, contended
that the widow was as much a holder of the shares
as her late husband, and was consequently liable
in solidum.
After hearing the argument, the Chief Justice
intimated that the Court would take time to
oonsider their judgment.
Postea (March 12.)
65
The Chief Justice delivered the following
judgment : The late F. W. Hofmeyr was
the registered owner of thirty shares in the
Union Bank. By the mutual will of himself and
his wife, to whom he was married in community of
property, the survivor and the children of the
marriage were appointed heirs of the first dying,
with liberty to the survivor to retain the minor
children's inheritance under his or her administra-
tion. The testator died in 1881, leaving
a minor child, Petronella, the issue of the
marriage. The survivor, as executrix, there-
after filed an account of her administra-
tion, by which she awarded to herself the sum of
£1,547 9b. 9d., being a moiety of the estate and a
child's portion, and the sum of £773 14s. 10d.,
being one-fourth of the net assets, to her child.
On the account there is a note to the effect that
" thirty Union Bank shares are at present unsale-
able," and the shares still stand registered in
F. W. Hofmeyr's name. The bank having been
ordered to be wound up in 1890, the applicants ,
ss liquidators, placed the estate of Hofmeyr
npon the list of contributories, but, as there are
no assets remaining in the estate, nothing has
been awarded to them. They now apply for an
order placing the name of Mrs. Hofmeyr, who has
since married Mr. Kiver, upon the list of con-
tributories for the full amount of the calls, and
directing the payment to the liquidators of the
one-fourth share of Hofmeyr's estate, which has
been awarded to the daughter, but which is
still under the administration of Mrs. Kiver. It
has been decided by this Court in the case of
Torbet v. Executors of Attwell (Buch. 1879, p 195),
that, under our law, differing in this respect from
the Roman law, the death ef ene of two or
mere partners does not dissolve the partnership
when the contract of partnership provides for itB
continuation for the benefit of the estate of the
deceased partner. It is obvious that joint-stock
companies, consisting, as they generally de, of a
great number of shareholders would never be
formed if the death of one of the shareholders
were to put an end to the concern. The deed of
settlement generally provides for the case of the
death of any shareholder, and even where such
provision does not exist, the test ef owner-
ship of shares, and therefore of partner-
ship in the concern, is always registration
of the name of the owner on the list of
shareholders. The seventh article of the deed
of settlement of the Union Bank recognises the
light of an executor to hold, in that capacity, the
shares of a deceased person whose estate he has
been appointed to administer, and the 18th and
15th articles make the registration of shares in
the name ef the owners the test as to the rights
ud liabilities of ownership. To the contract
embodied in these articles the late Hofmeyr
became a party when he became the duly-
registered holder of the thirty shares now in ques-
tion. He must be taken to have agreed that
until the shares should be transferred to some-
one else he or his estate should continue in
the partnership with all the rights, and subject
to all the liabilities which such a continuation
would involve. Creditors dealing with the bank
after his death were entitled to regard his
estate as liable for the debts and engagements
of the bank, and were justified in giving credit
to the bank upon the faith of his estate being sub-
ject to all the liabilities of shareholders. Upon
the winding up of the bank the liquidators were
justified in placing his estate, as represented by his
executrix, upon the list of contributories, and if
she had any assets left in her hands there can be
no doubt as to the right of the liquidators to share
in those assets for the payment of the calls which
the Court has authorised. The first respondent,
however, had already, before the winding up com-
menced, distributed the assets of Hofmeyr's estate
of which she was the executrix. One-half of the
net assets had been awarded to her in right
of her marriage in community to him,
and the other half had been equally
divided between her and her daughter, the
second respondent, as being the testamentary
heirs of the deceased. Her rights and liabilities
as surviving spouse must be considered separately
from the rights and liabilities of herself and
daughter as testamentary heirs. Until the com-
munity of property between Hofmeyr and his wife
was dissolved by his death he had the sole adminis-
tration of the common estate, and upon his death
that common estate was liable for all debts
incurred by him before and during the
marriage. The applicants seek to make the first
respondent liable as contributory for the full
amount of the calls on the thirty shares, but it
is clear that, as the shares have never been
transferred to her, she cannot be held liable,
in her individual capacity, as a contributory.
The more difficult question is, whether she is
liable to the creditors ef the estate for a greater
sum than she has actually received as surviving
spouse. It may fairly be urged on behalf
of the liquidators that the oause of the ultimate
debt originated during the subsistence of the
community, and that therefore she remains liable
for one-half of that debt, although it was really
incurred after the dissolution of the community.
According to Voet (28, 2, 84), "it is sufficient, in
order to oreate a community of profit and loss by
virtue of the marriage in community, that the
cause of the profit or loss has originated
before or during the subsistence of the
marriage, although the profit or loss, as the case
may be, should only accrue after the dissolution
of the marriage." Upon this principle the
64
first respondent was fairly entitled, aB against
the heirs of the deceased, to receive, as she did
receive, one-half of the dividends on the thirty
shares, but upon the same principle she cannot, as
between herself and the heirs, evade liability for
one-half of the loss occasioned by the failure of the
bank. The question is, whatever may be the rights
of the heirs in the coarse of administration,
whether the creditors of the estate have any claim
beyond the common estate of Hofmeyr and his
wife ? In the case of Brink v. Louw (1 Menzies
210) the husband had, during the community,
entered into a suretyship for which he became
liable, and had afterwards surrendered his estate
as insolvent, and it was held that his surviving
spouse, not having repudiated her interest in the
oommon estate, oould be sued for half the amount
of the suretyship debt. She had received
nothing out of the common estate, and yet
was held liable for one-half of the debts incurred
by her husband. But the debt was not, as in the
present case, unascertained and contingent at the
time of her husband's death, nor was his liability
dependent upon registration in his name. In the
present case the shares were never registered in the
first respondent's name, and the creditors, there-
fere, had no recourse against her individually as
shareholder. Their recourse was enly against the
common estate, whioh, at the time of Hofmeyr's
death, was under his administration, and was
liable to the payment of his debts. On the other
hand, until those debts, whether payable in prastnti
or in futuro, were satisfied, his surviving spouse
had no just or valid claim against the oommon
estate for her half -share of the net assets of the
community. It was not, therefore, safe or proper
for her, as executrix, to pay to herself as surviving
spouse any portion of the common estate until her
husband's shares in an unlimited banking oom-
pany had been transferred, or the liability
entailed by their retention had been ascertained.
These shares having been acquired by her hus-
band during the subsistence of the community,
it was impossible to say what the value of the
oommon estate was, so long as the shares re-
mained in his name. The event proved that the
estate was valueless. She might have prevented
the deterioration of the estate by realising the
shares, and this indeed it was her duty as execu-
trix to do. There is a note on the account that
at the date when it was framed the shares were
unsaleable, but there is no statement on oath
from her or anyone else that they oould not have
been sold between the date of the husband's death
and the winding-up order. Primafacie, therefore,
it would appear that she had no just or valid claim
against the oommon estate as surviving spouse, and
that she was not justified, knowing as she did that
the shares remained unsold, in awarding to herself
any portion of that estate. The first respondent is
also one of the testamentary heirs of her husband,
and in this respect she stands on the same footing
as her daughter. As heirs they have received their
moiety of the common estate. That moiety,
however, could not be ascertained so long
as the shares remained unsold and
untransf erred, and the executrix ought
not to have paid it out to herself and her
daughter, as heirs, until the continuing liability of
the estate had been satisfied. The next question
is, what remedy is open to the liquidators ? I have
already remarked that the first respondent cannot
be placed on the list of oontributories in her
individual capacity, and we are not asked to place
the second respondent on the list. The first
respondent has already been placed on the list in
her capacity as executrix, so that the liquidator*
are judgment creditors of the estate for
the amount of the call, namely, £4,500.
Her answer to the application for judg-
ment is that she has fully administered the
estate, and that she has ne assets as executrix to
meet the call. In view of the order which I pro-
pose to be made it would not be expedient for the
Court to state definitely at this stage whether the
answer is sufficient or not ; but I am clearly of
opinion, for the reasons already given, that there
are sufficient grounds for calling upon her to show
cause why she shall not be ordered to pay the
sums awarded to herself and her daughter de
bonis propriis. In making no order against the
first respondent as surviving spouse, and against her
and the second respondent as heirs, I do not wish to
be understood as holding that they are not liable
to refund at the suit of the liquidators. They
cannot be placed upon the list of oontributories
in their individual capacity, but if they are
liable to refund at the suit of the executrix,
there is authority for holding that they are subject
to the same liability at the suit of the creditors of
the estate. Voet (12, 6, 10) points out several
instances in which the condictio indebiti may be
instituted by persons other than those by whom or
in whose name the payment had been made. He
says, for example, that if the tutor of a minor has
paid some of the creditors in full, and it is after-
wards discovered that the estate is insufficient to
pay all the creditors, the unpaid creditors may pro-
oeed against those who have been paid for a re-
fund of a proportionate share. The proviso of the
82nd section of Ordinance 104 impliedly recognises
the general right of unpaid creditors of the estate
of a deceased person to sue a oreditor who has been
improperly paid, although it takes away that right
where such unpaid creditors have failed to lodge
their claims with the executor in due time.
That proviso does not, in my opinion, affect the
question whether or not creditors may recover resti-
tution from heirs or legatees, or even from persons
who have been paid as creditors, but had not, in
67
the language of the ordinance, any " just and valid
elsims against the estate." Such restitution, how-
ever, should be sought by action, and not by motion.
The present application, in the form in which it
hat been made, must be refused, but as the first
respondent's name has been properly placed on the
lilt ef contributeries, in her capacity as executrix,
the Court will grant a rule nut, calling upon her to
•how cause on the last day of next term why she
•hall not be ordered to pay de bonis propriis in
respect of the calls made on the thirty shares, the
rams paid by her as executrix to herself as sur-
viving spouse, and to herself and her daughter as
testamentary heirs, and te pay the costs of this
application.
MOBTON V. MOETON.
This was an action for divorce, instituted by the
plaintiff, the husband, by reason of his wife's
adultery.
Mr. Giddy, who appeared for the plaintiff, read
the evidence which had been taken on commission
in England.
The Court, after having heard the evidence,
granted the de>cree ef divorce as prayed for.
PETERS V. PETERS.
On the application of Mr. Jones, this case was
allowed to stand over till the 12th March.
HZYDENBYCH V. SALOMON & MCLOUGHLIN.
Debt — Judgment — Stay of execution — Re-
fusal of Magistrate to take evidence as to
ability of defendants to pay more than
amount tendered. Appeal — Judgment
amended by striking out stay of execution.
Leave given to Respondents to produce
further evidence.
On appeal from the Resident Magistrate of Cape
Town Mr. Graham appeared for the appellant
(the plaintiff in the Court below). This was an
appeal from the judgment of the Resident Magis-
itrat of Cape Town. The respondents (the
defendants in the Court below) had admitted the
debt — £48, and judgment was given against them,
hut execution stayed on their paying £1 a month,
the Magistrate refusing to take evidence as to the
ability of the respondents to pay more than £1 a
month. — Mr. Graham contended that the Magis-
trate was not justified in rejecting evidence en the
point submitted ; that the case was on .all fours
with that of u he Roux v. Hofmeister "J (heard in
the Supreme Court on the 2nd December, 1890),
and prayed that it might be remitted.
Mr. Justice Buchanan : What is the use of remit-
ting the case ? The Magistrate may take further
evidence and confirm his judgment.
Mr. Graham : We can produce evidenoe to show
that the respondents can pay more than £1 a
month.
The Court amended the judgment of the
Resident Magistrate by striking out the stay of
execution. Leave would, however, be given to the
defendants to produce evidence of their inability
to pay more than £1 a month. Costs were given.
SUPREME COURT.
MONDAY, MARCH 2.
[Before the Chief Justice(Sir J.H. DE VlLUEBS)
and Mr. Justice SMITH.]
HETDENBTCH V. LANGEBMANN.
Debts due to insolvent estate — Purchase of
right to recover same — Partnership — Final
statement of accounts.
Mr. Schreiner and Mr. Molteno for the plaintiff .
Mr. Searle and Mr. Graham for the defendant.
This was an action instituted by the plaintiff
(Mr. Benjamin G. Heydenrych) against Mr. P. J,
B. L anger mann for the recovery ef certain sums
of money, amounting in all to £93 18s. 8d., alleged
to be due by the defendant to the insolvent estate
of H. P. du Preez, and the right to recover which
had been bought by the plaintiff. It appeared from
the opening statement of counsel that in April,
1882, an agreement was entered into between Mr.
H. P. du Preez, Mr. 0. M. de Wet and the defendant,
by which the latter in consideration of his
advanoing the sum of £800 was to receive a fourth
share of the net profits of the business. Disagree-
ments appear to have arisen between Du Preez
and the defendant, and in Oetober, 1883, the
defendant left the business, he receiving as his
share £1,800, £800 in cash and bills extending over
two years for the balance. According to plaintiff's
statement, at the time defendant left the business
of Du Preez he (defendant) had not accounted for
certain sums of money which he had received, or
which had been paid on his account ; amongst
these was a claim the firm had against one
Lombard, of Malmesbury, for £72 3s. 6d., in full
discharge of which defendant had accepted a share
in the Malmesbury Board of Executors, but had
not debited himself with the £72 3s. 6d. The
defendant in his plea alleged that he had taken
the share in the Malmesbury Board of Executors
68
with the full knowledge and ooment of Da Preez
and that the settlement under which he received
£1,800 was final, and operated as a mutual release
between the parties. Upon these facts issue was
joined.
Mr. H. P.du Preez, examined by Mr. Schreiner,
stated that in April, 1882, he engaged Mr. Langer-
mann as financial clerk, but in consideration of bis
putting £800 into the business he waB to receive a
fourth of the net profits. Subsequently he had
disagreements with the defendant, and the latter
left the business on receiving £1,800. Witness
had no knowledge whatever of the transaction
with Lombard, and when defendant left the
business he (witness) was under the impression
that Lombard's account was still owing.
Gross-examined by Mr. Searle : lie was anxious
to get rid of Mr. Langermann, as he found that he
(Langermann) was in the habit of speaking too
much to outsiders about the affairs of the business.
On 6th October, 1883, Mr. Louw advanced £1,500
to pay off Langermann It was not till witness
had returned from England in April, 1886, that he
became aware of the transaction with Lombard.
He believed that Langermann had acted bona Jide
over the Lombard transaction, but he had failed
to debit himBelf .
Mr. Benjamin G. Heydenryoh, the plaintiff,
examined by Mr. Schreiner, stated that he had
bought the claims now sued on, at an auction held
by Mr. Gauvin. Some of the debts had already
been ceded to him, and he was second mortgagee
of others, so that he was obliged to buy them to
protect himself. He had liquidated Du Preez's
business, and the affair of the Morganson Syndicate
were chiefly in his hands.
In answer to the Court, witness said that he had
bought the debts for £11 lis., and had only re-
covered some £2 odd.
Mr. J. R. Lancaster stated that he had a desk in
Mr. Du Preez's office in 1881 and 1882. After Mr.
Herron (the bookkeeper) became ill, he rendered
some assistance in keeping the books. Langer-
mann's account appeared in the private ledger, but
he could find no trace of his being debited with
the share in the Malmesbury Board of Executors.
In answer to Mr. Justice Smith, the witness
stated it was not usual to have an ordinary clerk's
account in the private ledger.
Mr. F. J. B. Langermann, examined by Mr.
Searle, stated that the share in the Malmesbury
Board of Executors was transferred to him with
the full knowledge and consent of both Mr. Du
Preez and Mr. De Wet, and he (witness) was
nnder the impression that his account had been
debited with the amount. Since he had left the
business, Du Preez had never spoken to him of
any debts which he owed to Du Preez's estate.
Gross-examined by Mr. Schreiner : Witness had
■ever promised to contribute to any expenses in
connection with the Morganson Syndicate. Du
Preez had no authority to expend money on behalf
of the syndicate. He was of opinion that the
share in the Malmesbury Board of Executors was
handed to him by Mr. Du Preez. Witness could
not say if he had looked up his own account to see
how he stood, and did not remember £6 8s. being
paid for house duty on his account.
Re-examined by Mr. Searle : Witness thought
he W4B entitled to mere than he had received. He
was mainly induced to enter the firm owing to a
statement of Mr. Herron that the profits during
the preceding year had been £6,000.
Mr. T. J. Louw stated that in 1888 he entered
into partnership with Du Preez, and put £1,500
into the business to buy Langermann out. When
he had been about six months in the business he
ascertained that Langermann had not been paid.
Witness waB under the impression that he had
handed Lombard's share in the Malmesbury Board
of Executors to Du Preez. The share was then
worth £35.
J. 6. Mocke, examined, stated that he was one
of the Morganson Syndicate. He had never
authorised Mr. Du Preez to spend any money Ijon
behalf of the syndicate. He knew that Langer-
mann had spent money on the syndicate, and he
(witness) had spent about £1 10s.
Gross-examined by Mr. Schreiner : The specula-
tion had turned out successfully ; each member of
the syndicate got 680 shares when the company
had been floated, and he had sold 800 of bis shares
at a profit.
Mr. Sohreiner having addressed the Court,
The Chief Justice said that no rule was clearer
in our law than that the cessionary could have no
greater rights than the cedent. Had this action
been brought by Mr. Du Preez it would most
certainly have failed, and consequently the plaintiff
could be in no better position than Du Preez.
Fraud had not been pleaded, and in absence of
fraud he (the Chief Justice) was of opinion that
the settlement arrived at in October, 1888, was
final, and operated as a mutual release. With
regard to the amount charged in connection with
the syndicate there was not sufficient evidence that
Du Preez had any authority to inour expense en
that account. Under these circumstances, judg-
ment must be for the defendant with costs.
69
SUPREME COURT,
TUESDAY, MARCH 3.
[Before the Chief Justice (Sir J. H. DE
VlLLIKRS), and Mr. Justice SMITH.]
GBEEN AND CO. V. BEVEBIDGE.
Surety — Bond — Partnership — Where a
person has become surety for another
nnder a bond and renounced the " benencia''
nothing that such other person may have
done can affect the rights of the bond-
holder against the surety.
Mr. Searle (with whom was Mr. Webber) for
the plaintiffs.
Mr. Schreiner (with whom was Mr. Castens) for
the defendant.
This was an action instituted by B. K. Qreen &
Co. wine merchants, of Gape Town and elsewhere,
against Mr. Beveridge, of Kimberley, to recover
the sum of £200, under the following circum-
stances: On the 12th January, 1889, at Gape
Town, the defendant signed a written undertaking,
whereby he bound himself as Burety for the pay-
ment of a sum not exceeding £200, due from
William Aiton Briggs, for goods supplied by the
plaintiffs. In January, 1 889, on the faith of this
agreement, plaintiffs supplied liquors exceeding
£200, in value, and Briggs became liable. In
December, 1890, plaintiffs sued defendant on
provisional sentence, which was refused, plaintiffs
to go into the principal case, costs to be costs in
the cause. The plea was that the defendant was
sued for a portion of the price of wine and liquors
supplied to W. A. Briggs <fe Go., and not to W. A.
Briggs only ; that the defendant did not guarantee
the debts of the firm, but only the debts of W. A.
Briggs, and therefore that he was not liable for the
amount claimed; and generally, the defendant
pleaded that he only intended to guarantee the
individual debt of W. A. Briggs.
The Chief Justice : Is Briggs a member of the
firm?
Mr. Searle : Yes, but we say that Green knew
no one else but Briggs in the matter. Long
afterwards he did know that another gentleman
had seme interest in the business, after the goods
specified had been supplied.
Mr. Edward Knowles Green, the plaintiff,
stated that Briggs was formerly manager of his
Kimberley branch, and in 1888 proposed to start
business at Johannesburg, giving Beveridge as
security for £200. It was understood, for business
purposes, that he would trade as Briggs <fe Com-
pany, bat it was a fact that there was only Briggs
in the business,
The Ghief Justice : If the goods were supplied
to Briggs, the liability would remain. He might
call himself by any name.
Mr. Searle : An attempt will be made to show
that Briggs had a partner, whom he took in at
some other time.
Plaintiff, continuing, said that in May, 1889,
Briggs had a fire at Johannesburg. He never
told witness that he had a partner until later in
the year. In April, 1889, Briggs became insolvent,
and witness proved for £1,065 18s 3d.
Cross-examined : He admitted that in the corre-
spondence he addressed Briggs as Briggs & Go.
Mr. Briggs had greatly misled him, and he never
knew that Geddes was anything but a clerk in
Briggs's employ until the latter put him forward
m a partner.
Re-examined : He would not have supplied the
goods to the firm of Briggs & Geddes, although he
would and did to Briggs alone. His objection to
GeddeB was on personal grounds.
Mr. Edward Knowles Green, jun, produced the
accounts of the firm, and showed the amount due
by W. A. Briggs.
This closed the plaintiffs case.
Mr. Gastens read the evidence of Briggs, taken
on commission in Natal. He stated that Geddes
was his partner, and E. K. Green, sen., was well
acquainted with it.
For the defence
Mr. George Beveridge, general importer, of
Kimberley, stated that he signed the agreement
on the 12th January, 1889. He did not then know
that Briggs was going to trade in partnership, but
he ascertained so afterwards. Witness had no
financial interest in the business. Mr. Green
never told him that Briggs would carry on business
as Briggs <fe Go.
Gross-examined: He gave the security of his
name to Briggs alone. Brigge never said anything
about Geddes at first. When he heard Geddes
was in. partnership he concluded that his surety-
ship would be at an end, although he never
informed the plaintiff of his belief.
By the Court : He would not have taken Geddes's
liability.
This closed the defendant's case.
Without calling upon Mr. Searle for the plaintiff,
the Court gave judgment.
The Ghief Justice said the question whether
defendant was bound beyond the scope of his
engagement depended upon a further question of
fact whether the plaintiffs did or did not give
credit to Briggs alone. In his opinion all the
evidenoe tended to show that throughout the
plaintiffs depended upon the credit of BriggB only,
and that he did not know Geddes was to be a
partner. He was also satisfied that Beveridge did
not know that Geddes was to be a partner, and
that if he had, he would not have become surety.
70
What Briggs might do behind the back of the
plaintiffs, could not affect their rights under the
bond, and plaintiffs were entitled to judgment
with coats.
DUNA V. SABBNKOLA.
Non-jurisdiction and irregularity — Act 20 of
1856 — 190th rule of Court— •" Judicial
proceedings capable of being reviewed " —
Where a Resident Magistrate not in his
magisterial capacity but as " Head of the
District" had settled a dispute between
two natives, such a proceeding was held
not to be a judicial proceeding capable of
being reviewed within the 190th Rule of
Court.
Mr. Schreiner appeared for the applicant.
Mr. Giddy for the respondent Jenner, and Mr.
Juta for the respondent Sabenkola.
This was an application to show cause why an
action adjudicated upon by the Resident Magis-
trate of Glen Grey (Mr. Jenner) should not be
brought under review of the Supreme Court on
the grounds of irregularity and non-jurisdiction.
It appeared that Sabenkola laid a complaint
regarding a certain dam and watercourse alleged
to belong to him. The parties appeared before
the Magistrate, not in his capacity as Magistrate,
but as head of the district, and after hearing them
the Magistrate gave judgment for Sabenkola,
ousting him, as Duna alleged, out of possession of
the land. The matter was brought before the
Supreme Court on the grounds that the proceedings
were irregular, in that no Bummons was issued or
served on the applicant, and that the evidence was
not taken of either ; that the Magistrate refused
to admit material evidence, and that he had no
jurisdiction to determine the case under the Act
20 of 1866.
The Chief Justice gave judgment. He said that
in his opinion this was no case for review at all.
The 190th Rule of Court clearly referred to pro-
ceedings in an inferior Court of Justice, but the
present proceedings did not take place in any
Court at all. The Magistrate seemed to believe
himself head of the district, and when he had
performed his judical functions in the Periodical
Court, be then, in a private manner, called the
parties together, and settled the dispute. Either
it was in the nature of an arbitration, or it was
wholly null and void. It was not alleged on
behalf of the applicant that it was in the nature
of an arbitration, and that being so, the proceedings
were wholly null and void, and the applicant was
not aggrieved by the Magistrate's order. He was
no more bound to obey this so-called order than
he would have been bound if any private person
had made a similar order. In that respect the
oase dearly differed from the case in which a
magistrate gave a verbal notice to a witness to
appear whtn the witness did not appear, and he
was committed for contempt of Court. Clearly this
man was aggrieved, there being something to
appeal against there ; but in the present case the
plaintiff was not aggrieved in the least. He chose
to obey what he believed to be a judicial order,
but that was owing to his ignorance of the law.
If he had known his rights, he would have known
that he was not bound to obey the Magistrate's order.
Clearly it was not a case in which the particular
rule of Court was applicable. Probably the
applicant, even though he had given up occupation
of the land, might have his rights against the
Government er other parties, by action, to be re-
instated in the land which he gave up under the
belief that he was bound to give it up. In his
(the Chief Justice's) opinion, the proceeding was
not a judical proceeding capable of being reviewed
and the application must be refused with costs.
VAN HEEBDEN V. THE MUNICIPALITY OP
VICTORIA WEST.
Municipality — Municipal Regulations — Cesa-
pools — Where a Municipality has by its
regulations power to close cesspools it
cannot compel an inhabitant to empty and
close a cesspool situated on his land.
-Mr. Juta appeared for the appellant.
Mr. Giddy for the respondents, the Municipality
of Victoria West.
This was an appeal from the Resident Magis-
trate of Victoria West. The appellant was charged
by the Municipality with contravening section 41
of the Town Regulations in that on the 22nd
Deoember, 1890, he failed to close a oesBpool
(situated on his property, Erf 47), the same being
considered prejudicial to public health. Evidence
was taken and the appellant (then defendant) was
fined 5s., or ordered to be imprisoned for a day.
The Chief Justice remarked, as Mr. Juta was
proceeding to argue, that the prisoner had pleaded
guilty.
Mr. Juta : That must be a mistake, my Lord,
(Laughter.)
Mr. Giddy : No, it is not.
Mr. Juta : The whole of the evidence waB gone
into. There must be some mistake.
Mr. Giddy : No. The prisoner on being arraigned
pleaded guilty.
Mr. Juta : Well, I can't help what the Magistrate
sends up.
n
The Chief Justice : You mean you can't help
what your client chooses to send. (Laughter.)
Mr. Juta: Bat the curious thing is that the
evidence for the defence is called.
The Chief Justice: Is that a mistake, Mr.
Giddy?
Mr. Giddy : No, my Lord ; it was arranged that
he should plead guilty to not having closed his
cesspool on the command of the Council, and it
was by consent arranged that the evidence should
be evidence against certain other defendants, and
the whole point that now arises is whether this
regulation (41) is ultra vires or intra vires. Pro-
ceeding, Mr. Giddy quoted a case in which a man
charged with a Municipal offence pleaded guilty,
but was found not guilty on the ground that the
regulation was uUra vires.
The Chief Justice, after referring to the case,
said Mr. Giddy was unfortunate in having men-
tioned it as it was a strong point in favour of Mr.
Juta.
Mr. Giddy : I am sorry Mr. Juta did not quote
it then. (Laughter.)
The Chief Justice, in giving judgment, said he
regretted to have to come to the conclusion that the
Town Council and the Magistrate had somewhat
erred. If this 41st regulation was within the
powers of the Council, then the Council ought to
have closed the cesspool themselves. They ought
to have carried out their resolution to empty the
cesspool and then close it up, which power they
had. But instead of that they called on the owner
to empty and close it, but there was no regulation
authorising them to call on the owner to go to that
expense. In the present case the defendant was
charged with neglecting to dose the cesspool when
there was really no regulation compelling him to
do so. The 41st regulation certainly did not; it
only authorised the Town Council to do so, and
this objection was not taken in the Court below.
If costs had been asked for he should certainly not
have given them, because the only objection
taken in the lower Court was that the regulation
was ultra vires. The appellant had done nothing
in contravention of the 41st regulation, and the
sentence most be quashed.
BEGINA V. LOONTJE8.
Masters and Servants Act — Police Act —
Using abusive and obscene language —
Conviction quashed.
Mr. Justice Smith stated that this case had come
before him from a special justice of the peace at
Durbanville. The prisoner was charged with
having used abusive and obscene language on a
firm with intent to provoke a breach of the peace.
He sent the case back to the Magistrate to know
under what Act he had proceeded, and pointed out
to him that the Police Act only applied to the use
of abusive language in a publio plaoe. The
Magistrate returned the record, saying that
prisoner was charged under the Masters and
Servants Act. The only witness in reference to
the alleged offence stated that the accused was not
a servant at all, therefore the conviction must be
quashed. Regarding a person coming into
another's house, there was no remedy whatever,
exoept the intruder were told to leave the house,
and then, if he refused, he could be indicted under
the Police Act for trespass. But there was no
Act that he was aware of that provided for a
person coming into a house and using bad
language.
SUPREME COURT
(IN CHAMBERS).
TUESDAY, MARCH 10.
[Before Mr. Justice SMITH.]
IN THE INSOLVENT ESTATE OF HENRY HEATH.
Insolvency — Transfer of shares by insolvent.
Mr. Sohreiner, on behalf of the trustee, applied
for the appointment of a commission at Kimberley,
to examine Mr. Henry Lang and Mr. W. H.
Craven regarding the transfer, by the insolvent, of
100 shares in the De Beer's Consolidated Mines.
It appears that the insolvent, whose present
address is unknown, is the registered shareholder
of 112 shares in the Cape of Good Hope Bank, and
that shortly after his insolvency he disposed of the
100 shares which he held in the De Beer's Mines.
The object of the commission applied for was to
examine witnesses as to this latter transaction.
The Court granted the order, and appointed the
Resident Magistrate of Kimberley commissioner ;
a further application to be made should the
examination of other witnesses be considered
necessary.
THE PAARL BANK (IN LIQUIDATION) V. HUGO
AND OTHERS.
On the application of Mr. Graham, authority
was granted to the liquidators of the above bank
to issue execution against certain contributories in
respect of shares held by them in the said bank,
upon each of which a call of £260 has been made.
12
IN BE LUSCOMBE'S TRUBT FUND.
Trustees — Appointment of trustees by Chan
eery Division of High Court of Justice
(England) confirmed.
Mr. Graham moved for an order confirming or
recognising the appointment by the Chancery
Division ef the High Court of Justice of trustees
of the said fund, and authorising the payment
thereof by the present holders. The petitioners
were Mr. Charles Judge, broker, of Trinity
House-lane, Kingston-upon-Hull, Yorkshire, and
Mr. William Lusoombe, of Oldbro' Villa, Marl-
borough- avenue, in the same borough, trustees of
a sum of money made over by Henry Lusoombe,
who died in Cape Town in 1864, to the late Hon
William Porter. The latter died in 1880, without
having appointed a trustee, and the fund has
since been administered by the Colonial Orphan
Chamber.
The Court confirmed the appointment made by
the Chancery Division of the High Court of
Justice.
SUPREME COURT.
THURSDAY, MARCH 12.
[Before the Chief Justice (Sir J. H. DE V ILLIBBB),
and Mr. Justice SMITH].
UNION BANK (IN LIQUIDATION), V. WATSON'S
HEIBS.
Company — Bank in liquidation — Contri-
butories — Executors— Payment de bonis
propriis.
The Chief Justice mentioned that Mr.
Schreiner appeared in this case the other day,
and the Court was of opinion that the
principle which guided them to a decision in
Hofmeyr's case should also apply to Watson's.
Were the shares kept unsold by the executors
with the consent of the heirs ?
Mr. Schreiner said he had no information upon
the point.
The Chief Justice: As, against creditors
whom the liquidators represent, were the exe-
cutors of Watson's estate justified in paying
anything to the heirs ?
Mr. Schreiner : We say no.
The Chief Justice then intimated that the Court
was of opinion that a rule nwi, similar in its terms
to that in Hofmeyr's matter, should be granted,
returnable on the 18th of next month. The order
in detail was, calling on the executors to show
cause why they should not, failing sufficient fur-
ther assets in the estate, be ordered to pay de bonis
propriis the amount of the calls due in respect of
the shares standing in the name of Mr. Watson,
not exceeding, however, such sums as the executors
had paid out to the heirs and legatees. The execu-
tors would be justified in making payments to
creditors.
THE UNION BANK V. THOMPSON.
On the motion of Mr. Schreiner, provisional
sentence was granted on a promissory note for
£201.
HYLAND V. BBOWN.
On the application of Mr. Jones, the provisional
order for sequestration was discharged.
8TANDABD BANK V. POPPB, BU880UW AND CO #
On the motion of Mr. Graham, the final order
for sequestration of defendants' estate was
granted.
WIGHT V. JAMES BUTHEBFOOBD.
Mr. Sheil moved for provisional sentence for
£14 12s. 6d., interest on mortgage bond, and 14s.,
premium paid on policy of fire insurance in terms
of bond. — Provisional sentence granted.
VAN ZYL V. SCHWABTZ.
On the motion of Mr. Juta, provisional sentence
was granted on an acknowledgment of debt for
£86 2s.
GEBICKE V. LAMPBECHT.
On the application of Mr. Juta, a final order for
the sequestration of respondent's estate was
granted.
DABTEB Y. GBEATBACK.
On the motion of Mr. Jones, provisional sentence
was granted on a dishonoured cheque for
£21 18s. 6d., subject to the production of a certifi-
cate of presentation
BOTMA V. BOTMA.
Sale — Conditions — Payment by instalments —
Provisional sentence refused where period
within which first instalment was to have
been made had not expired.
Mr. Juta, for the applicant, moved for pro-
visional sentence on two conditions of sale (one of
which was in English and the other in Dutch) for
£1,000 and £950 respectively. It appears that the
conditions were signed on the 20th December, 1890,
73
and that the money was to be payable in three in-
stalments, the first payment to be within three
months after the signing of the conditions ; there
were further conditions that the respondent
inould either find sureties or pass a bond as
security for payment of the instalments.
Mr. Schreiner, who opposed the motion, con-
tended that no money was yet due, as the first
three months (within which period the first instal-
ment was to be paid) had not yet elapsed.
Provisional sentence refused with costs.
CAPE CENTRAL RAILWAYS V. JOHN WALKER.
Costs taxed of motion in High Court of
Justice — Provisional sentence— Where a
person brings two actions and is un-
successful in the first he must pay the
costs of the unsuccessful action before he
will be allowed to proceed with the second.
Mr. Schreiner moved for provisional sen-
tence on a sum of £271 7s 4d., taxed costs of a
motion made bv defendant in the High Court of
Jutice, against the official liquidator of the com-
pany in England (Mr. John Drew Behr), in
which the latter was respondent.
Mr. Juta, for the defendant, said he had no defence,
bat he asked for a stay of execution, pending an ac-
tion about to be brought by Mr. Walker againt the
official liquidator of the company in South Africa,
for a sum of nearly £100,000. Security would be
given.
The Chief Justice, in giving judgment, said it
would be quite against the practice of the Court if
stay of execution were ordered. The prinoiple
generally adopted was that where a person brought
two actions, and he was unsuccessf ul in the first,
he must first pay the costs before he was allowed
to proceed. The Court could not assume that Mr.
Walker would be successful in the action pending,
and in the meanwhile he must pay the costs of the
previous case. Provisional sentence would be
granted with costs.
HAMILTON BOBS AND CO. V. ISAAC SAUNDERS.
On the application of Mr. Jones, provisional
sentence was granted for £60 2s., being balance of
account.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : Marthinus
WUhelmus Theunissen, Albertus Johannes du
Toit, Jose' Antonie Cabrita, and Julius Vogl.
I*
CBOZIEB V. CBOZIEB.
On the motion of Mr. Graham, the rule nisi was
made absolute dissolving the marriage subsisting
between the parties.
PETITION OF SOPHIA MCLEBOTH.
Sir Thomas Upington, Q.C, applied for the
appointment of a curator ad litem in proceedings
about to be instituted by petitioner to have her
husband declared of unsound mind and incapable
of managing his own affairs.
The Court granted the application, and appoin-
ted Mr. Sheil curator ad litem.
ESTATE LATE JOHN JAMIESON.
Will — Executors exempted from filing
accounts— Ordinance 104 — Notice — Where
a testator has exempted his executors
from filing the ordinary administration
accounts — Notice ought to be given to the
executors before calling upon them to
conform to the provisions of Ordinance
104.
Mr. Schreiner moved for an order requiring the
executors of the above estate to render to the
Master of the Supreme Court a complete inventory
and account of administration in terms of the
Ordinance No. 104.
The Chief Justice said that where a testator had
exempted his executors from filing an account
notice ought to be given to the executors by the
Master before any application could be made to
the Court. There would be no order, but notice
must be given to the executors.
THE CAPE OP GOOD HOPE BANK, (IN LIQUI-
DATION), V. EAST, BUNCIMAN AND OTHERS.
Company — Bank in liquidation — Compromise
— Former shareholders — Contributories —
Excusftion— Act 23 of 1861.
Where liquidators have entered into a com-
promise with a shareholder, and have not
availed themselves of the powers conferred
upon them by Act 23 of 1861, Section 13,
they cannot fall back upon former share-
holders who had bona fide transferred their
shares to the person with whom the
liquidators have compromised.
Qucerc — Whether past shareholders can be
placed upon the list of contributories
before all the assets of the bank have been
realized.
74
Sir Thomas Upington, Q.C , moved for leave to
issue execution asr ainst Messrs East, Runciman,
Stewart, and Stamper for the deficiency arising out
of a compromise entered into by the official liqui-
dators and one Frederick W. Mills in respect of
sixty- seven shares' in the said bank, of which the
respondents were former holders, or, in the alterna-
tive, to place the names of the respondents upon
the list of oontribntories. The affidavits of Mr
Harry Bolus, one of the liquidators, showed that,
even if all present shareholders paid up their
liability of £30 in full, there would still
be a deficiency. Frederick William Mills
owned seventy shares in the late bank,
the calls on which were £2,100. A com-
promise had been entered into, under which
he had paid £1,819 10s. 8d., leaving a deficiency of
£780 9s. 4d. Of these shares sixty- seven were
acquired by Mills from the above-named re-
spondents within two years of the order of the
winding up of the bank, and at a time when there
were certain debts existing, for the payment of
which their liability, it was urged, had not ceased.
This period was within two years. Mills having
reoeived twelve shares from East in 1888, eight
from Stewart in February, 1890, ferty-four from
Stamper in March, 1890, and the remaining three
from a Mr. Brasch, who some time since went to
Australia, and against whom no order was sought.
Mr. Schreiner read the affidavits of the respond-
ents, who generally denied the locus standi of the
applicants, and denied their liability, and that the
shareholders had to be fully excussed.
In the course of argument, Sir Thomas Uping-
ton said he could find nothing to support the view
that, where the Court had approved ef a com-
promise, it was anything more than an excursion
for the time being, and a compromise did not
amount to a complete exoneration of any other
person who would be liable.
The Chief Justice observed that the liquidators
now only represented creditors, and could these
creditors have sued past shareholders after having
made compromises with present shareholders ?
Sir Thomas Upington submitted they could.
The Chief Justice asked Mr. Schreiner
if he contended that there must be a realisation
of all assets before past shareholders could be
touched ?
Mr. Schreiner replied that there must be either
an actual realisation, or Bucb a realisation of
their actual value as the Court would take as con-
clusive.
The Chief Justice said the Court had already
decided in the Paarl Bank matter that the liqui-
dators represented the creditors, and as soon as the
winding-up took place no creditor had any claim
against past or present shareholders.
Sir Thomas Upington, in addressing the Court,
pointed out that the question was one of con-
siderable importance, because, as he was informed,
there were about seventy of these compromises
pending, and if it were decided that they released
the prior shareholders, it would cause a condition
of things that might be disastrous to many.
The Chief Justice, in giving judgment, remarked
that, in winding-up proceedings, the liquida-
tors represented the company and the creditors.
So far as they represented the company, they had
no claim against past shareholders. Under the
terms of the 20th clause of the trust deed, as between
the shareholders themselves, the present share-
holders had no olaim whatever against past share-
holders to compel them to contribute towards the
debts of the company, and the only principle upon
which the liquidators could have any claim against
past shareholders in the present case was on the
principle that they represented for certain pur-
poses the creditors of the company. Now the
liquidators, as representing the creditors, could
have no greater rights than the creditors them-
selves would have had at the time when the order
for the winding-up was made. If a creditor whose
debt existed before any shareholder transferred his
shares had sued such a shareholder, he would
have been bound to show . that there had been a
complete excussion against the present share-
holder before the past shareholder oould be held
liable. In the present case it appeared that Mills
had proposed a compromise, which had no
doubt been assented to by the Court, but
it was assented to on the assumption that
the liquidators had ascertained that it would be
wholly impossible to obtain more from him than
had been obtained by means of the compromise.
But that was an assumption that was not binding
on past shareholders who had transferred their
shares ; they were still liable to any benefits
which the 13th section of Act 23 of 1861 had
given to them. Regarding the 12th section, he
(the Chief Justice) desired to say there had already
been sufficient excussion of the company itself to
justify the liquidators to come on the present share-
holders, otherwise the order of Court could not have
been made placing present shareholders on
the list of contributones. The mere fact that the
bank had been put under the Winding-up Act
amounted, he thought, to an excussion for the
purposes of making present shareholders liable.
His lordship then read the terms of the 13th
seetion, and said that no words could be stronger ;
actual execution was required. He could very
well imagine there might be instances where
actual execution might not be required,
for the reason that what amounted te execution
had already been issued. If, for instance, Mills
had become insolvent, proof in his insolvent estate
would have been sufficient, for the simple reason
that the law did not autheiise further execution
I against a person's estate which had been placed
?5
under sequestration, except under circumstances
which he need not now mention, and which would
not apply here. But Mills was not insolvent ;
the liquidators had made a compromise
with him, and altogether he (the Chief Justice)
thought that former shareholders were now en-
titled to say " You cannot fall back on up, because
you have not made use of the privileges given you
under the 13th section." For this simple reason,
he was of opinion that the present application to
place the respondents on the list of contributories
ought to fail. At the same time he
thought they ought to go further, and in
his opinion certainly, even if there had been
no compromise with Mills, he would have held that
the application was at present premature. The
Court had not sufficient information to settle the
rights and liabilities of oontributories, and
until they had such information it was
impossible for them to place any past
shareholders on the list at all. The
Court ought to be satisfied, before placing
any past shareholders on the list, that it
was wholly impossible to obtain from the present
shareholders sufficient to pay the debts and lia-
bilities of the company. The Court knew from
information before them that the bank held a
large quantity of gold scrip for realisation, and
until that had been realised it was impassible to
say that the present shareholders would be unable to
satisfy all the liabilities, because by the realisation
of the scrip the liabilities might be reduced to
such an extent that the present shareholders
would be able to pay the whole of the liabilities.
In holding this view he (the Chief Justice) must
add that he could not agree with M r. Schrei ner
that the two years would continue to run in
favour of past sha reho lders. He waB inclined to
b ums: IKat ?s soon as the colli PaMjl WasHSIaced
nnder the operation of the Wind ing-up Act that
the two years would cease to run, j and the rights
of Bfiafeholders, past and present, must be looked
at as existing at the time that the winding-up
order was made. He mentioned this so that it
might not be supposed that, owing to any
length of time in realisation of the
assets, the past shareholders would on that account
be relieved from liability. The judgment of the
Court must be for the respondents with costs, the
application being refused.
THE COLONIAL ORPHAN CHAMBER V. MARNITZ.
Mr. Schreiner, for the applicants, moved to
make absolute the rule nisi restraining the re-
spondent from entering on certain land, the
property of applicants, known as Riet Valley,
situated in the division of Uniondale.
Sir T. Upington, Q.C., for the respondent,
opposed the motion.
After hearing the arguments of counsel the
Court suspended the operation of the rule, the
applicants to bring their action at as early a date
as possible.
VAN ZYL AND OTHERS V. DE BEER'8
EXECUTRIX.
This matter was ordered to stand over till Tues-
day next.
THE DUTCH REFORMED CHURCH, ADDERLEY-
BTREET, Y. THE REGISTRAR OF DEEDS AND
OTHERS.
Mr. Schreiner, who appeared for the Consistory
of the Dutoh Reformed Church, Adderley-street,
applied for an order requiring the cancellation in
the Debt Register of a certain bond for £800
registered as owing te the Board of Executors, of
Cape Town, by the Bree-street Dutch Reformed
Church, on the ground that no such debt was
owing by the paid Church.
Sir T. Upington, Q.C., on behalf of the
respondents, submitted that the only question
before the Court was that of the costs of the
application, as the bond had been paid off and the
applicants had sustained no injury by the mis-
description which had appeared in the Debt
Register.
The Registrar of Deeds having explained the
circumstances under which the entry had been
made, the Chief Justice said that the Court was
clearly of opinion that the applicants had not been
prejudiced in any way. Under these circum-
stances, the application must be refused with costs.
MEYER V. REISBERG.
On the application of Sir T. Upington, Q.C., the
rule nufi was made absolute interdicting the
respondent from removing reeds and grazing cattle
on the farm Kassehvlei, in the district of the
Cape, pending an action te be brought for eject-
ment, damages, and perpetual interdict.
Mr. MoLaohlan consented, and the rule was made
absolute with costs.
SUPREME COURT.
FRIDAY, MARCH 13.
[Before the Chief Justice (Sir J. H. DE VILLI ERs)
and Mr. Justice SMITH.]
THE CAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION) V. EAST, RUNCIMAN, AND OTHER8.
The Chief Justice said that with regard to the
above matter, which had been heard yesterday, ho
f6
wished to be clearly understood that the judgment
in that case proceeded solely upon the ground that,
by the compromise with Mills, the liquidators were
debarred from placing the respondents upon the
list of contributories, and that what else had been
said in that case should be regarded as obiter
dictum. He still thought that the application was
premature upon the information which had been
put before the Court, but the question whether
past shareholders could not be put upon the list of
contributories before all the assets had been
realised had not been decided and was still open for
argument, and the Court thought it would be well
if another case were brought before it in such a
shape that this latter point, as well as the question
of the two years, could be fully discussed and
decided*
THE UNION BANK, (IN LIQUIDATION.)
On the motion of Mr. Sohreiner, leave was
granted to issue execution against Philip H.
Brentnall in respect of calls due upon certain
twenty shares in the said bank.
LKVATTB V. LEVATTE AND HENDEBSON.
Divorce — Unstamped affidavits allowed to be
read.
Application to make absolute rule nisi per-
mitting applicant to sue in forma pauperis
refused, and rule discharged where it
appeared from affidavit that applicant had
realized joint estate and remained in
possession of proceeds.
Mr. McLachlan moved to make absolute the rule
nisi admitting the applicant to sue in forma paw-
peris in an action to be brought by him for divorce
and for damages.
Mr. She il, for the first-named respondent, applied
for discharge of the rule, and with permission of
the Court, read two affidavits (which had been
refused by the Registrar as not being stamped),
which set forth that the applicant had been in con-
stant employment at the Salt River works for the
past eleven years ; that he had realised the joint
estate of himself and his wife, and was in posses-
sion of the proceeds, and generally that he was in
a position to proceed with his action in the or-
dinary course.
The Court discharged the rule, but made no
order as to costs.
PETITION OF HABBIET PARKER.
Mr. Schreiner moved for the appointment of the
Griqualand West Board of Executors as curator
bonis in the estate of Mary Ann Hopkins, a person
of unsound mind. Mrs. Hopkins was recently de-
clared a lunatic, and the applicant was appointed
curator, but being unable to procure the necessary
security the present application was made.
The Court appointed Mr. Francis Joseph
Gardner, secretary of the Griqualand West Board
of Executors, Kimberley, as curator bonis, costs to
come out of the estate.
THE PETITION OP MART ANN LOYDEN.
Mr. Shiel, on behalf of the petitioner, moved for
leave to sue in forma pauperis in an action to be
instituted by her against her husband for restitu-
tion of conjugal rights, failing whioh for divorce.
Referred to counsel for his certificate.
IN THE ESTATE OP THE LATE JOHN SPIBO
MASTERS.
Will — Landed Property — Executor dative,
Debts due by estate.
Where under a will the sale of landed
property had been prohibited the Court
refused to empower an executor to sell the
property to meet existing claims until
satisfied that sufficient money for that
purpose could not be raised by way of
mortgage.
Mr. Schreiner moved for authority to Mr. W. A*
Currey, the executor dative, to sell the landed
property in the estate for the purpose of satisfying
debts and maternal inheritance.
It appears that Mr. Masters died last year. By
the terms of his will, the landed property in the
estate, which consists ef three lots of ground with
buildings thereon, situated in Port Elizabeth, and
yielding a rental of about £48 a year, was ordered
not to be sold. There was a debt of £60 due by
the estate to Messrs. Ohlsson & Co., one of the
children had also reached his majority, and was
entitled to his maternal inheritance. There were
no funds in hand to meet these claims, and in
consequence the executor dative asked that per-
mission should be given him to sell the property.
The Chief Justice said he thought no order
ought to be made on the present application until
some attempt had been made to raise money on
mortgage. To sell the property would be in
opposition to the will, and he was not satisfied
that money could not be raised.
THE PETITION OP MICHAEL CUNNINGHAM.
Transfer — Bond on property — Refund of
purchase money — Refusal to cancel.
Mr. Schreiner moved for authority to the Regis-
trar of Deeds to cancel the transfer to James
w
Maloney of certain lot of ground situated in Pier-
itreet, Port Elizabeth, the sale to the said Maloney
having been cancelled, and the purchase price
refunded.
It appears that the petitioner, who is a police-
constable in Pert Elizabeth, sold the ground to
Maloney for £25. After transfer had been passed
it was discovered that there was a bond on the
property. In consequence of this the purchase
price was refunded to Maloney, but the transfer
had not been cancelled. Maloney was now . re-
ported to be in North America, and the Registrar
of Deeds refused to cancel the transfer unless
Maloney were a party to the cancellation.
The Court granted a rule calling on James
Maloney to show cause on the first day of next
term why transfer should not be cancelled ; the
rule to be published in the Government Gazette,
and served on the Registrar of Deeds.
PAARL MUNICIPALITY V. BLIGNAUT.
Nuisance — Municipality — Distillery refuse —
Open drain — Interdict suspended.
Sir Thomas Upington, Q.C., for applicants.
Mr. Schreiner f er the defendant.
This was a motion to make absolute a rule
nisi restraining the respondent, Jan Hendrik
Blignaut, from discharging any refuse from the
distillery of Blignaut A Co., of the Paarl, into the
Municipal drain, pending an action to be brought
to compel the defendant to abate the nuisance.
The affidavit was read of the chairman of the
Paarl Municipality, who stated that the distillery
was in the most densely populated part of the
tewn, and that the refuse flowed for a distance ef
over 1,000 yards in the Municipal drain on the
side of Market-street, before discharging itself
inte the Berg River. Complaints had frequently
been lodged with the Municipality, and the
respondent had been called upon to abate the
nuisance. The firm had occasionally flushed the
drain with water, but had done nothing
permanently to abate a nuisance which was now
intolerable. A petition against the nuisance had
been presented by a number of the inhabitants.
The affidavit of Jan Hendrik Blignaut, the
respondent, was also read. He stated that the
business had been carried on for thirty-six years,
and that most of the distilling was done in the
winter months. The refuse was carried by a brick
gutter a distance of 150 yards, when it fell into an
open Municipal drain crossing the main road. It
consisted mainly of distilled wine and clean wattr
used for cleaning the machinery ; the fluid was
clean and inoffensive when it left the distillery,
and continued so until it came into contact with
the rubbish and garbage put in the Municipal
drains by the inhabitants, which was allowed to
remain until it was decomposed and an offensive
smell arose, and this it was the duty of the
Municipality to prevent. Deponent had heard of
no complaints regarding the private drain of 150
yards in length, and he had offered to the
applicants to lay pipes on the £ for £ principle,
but they had refused to accept the proposal.
Mr. Schreiner also read the affidavits of Mr.
Malherbe, who previously owned the distillery, and
of the District Surgeon and another doctor, who
practises at the Paarl, and which showed that the
nuisance was caused by the Municipality not
keeping the drain clean.
The Chief Justice remarked that the liquid
might be quite innocuous when it left the dis-
tillery, but when it had gone some distance it
might become a great nuisance, as in the case
of refuse from a brewery.
Mr. Schreiner quite agreed, but said a brewery
was quite different from a distillery.
The Chief Justice suggested that the case was
not one for a role nisi. People's ideas upon
sanitation were certainly more refined in the
present day, but it must be remembered that the
distillery had been discharging refuse for a very
long time, although the fact that the inhabitants
had not offered opposition previously did not
prove that the refuse was inoffensive.
After argument,
The Court gave no expression of opinion upon
the case, but suspended the interdict pending an
action for a perpetual interdict, the applicants
undertaking to keep the drain clean of other offen-
sive matter ; costs to be costs in the cause.
The Chief Justice said it would be all the better
if the parties could come to an amicable agree-
ment.
INSOLVENT ESTATE DONALD D. HOUSTON.
Mr. Schreiner moved to make absolute the rule
nisi authorising the Registrar of Deeds to register
in the name of the said estate a certain farm called
Ylakplats, situated in the district of Griqualand
Bast.
The Court made the rule absolute, subject to
the production of a Kokstad paper containing
notice.
D'ABC V. BENSON AND MCDEBMOTT.
Sir Thomas Upington moved to make absolute
a rule nisi interdicting the sale in execution in the
said suit of certain property attached by the
Deputy Sheriff of Uitenhage, pending the decision
of the Court as to the ownership thereof. There
was no appearance for the defendants, and
The Court made the rule absolute as prayed,
costs to abide the result.
u
DAMARALAND MINING AND EXPLORATION
COMPANY, LIMITED.
Company — Winding up — Appointment of
liquidators.
Mr. Schreiner moved to have this company
placed under the operation of the Winding-up
Act, and for the app< intra en t of Messrs. H. Gibson
and J. A. Bam as official liquidators. The liabili-
ties being £650, and the assets £150.
The motion was granted, the official liquidators
to have powers under the 15th section of the Act.
PETERS V. PETERS.
Mr. Jones moved, on behalf of Mrs. Peters, at
present residing in the district of St. Mark's,
Tembuland, for an order of restitution of conjugal
rights against her husband, William Peters, and
failing compliance with which a decree of
divorce, and the custody of the two
children of the marriage. The parties were
married in 1880 at King William's Town. In
1884, whilst they were at Gradonk, defendant
deserted his wife, who had never seen him since.
Neither was she acquainted with his whereabouts
until comparatively recently, when she learned that
he was in Auckland, New Zealand, and in a letter
had expressed himself as unfit to return to the
Cape, and he had no intention of so returning.
He hoped his wife would get a divorce if she
applied for it.
The Court granted the order as prayed, defen-
dant to return to or receive plaintiff on or before
80th May next, failing which to show cause on the
last day of next term why a decree of divorce,
carrying with it the custody of the children, should
not be granted the plaintiff, the order to be
published in the same manner as the interdict,
namely, in the Auckland Star,
SUPREME COURT.
TUESDAY, MARCH 17.
[Before the Chief Justice (Sir J. H. DE Vil-
LIERS) and Mr. Justice SMITH.]
THE CAPE OP GOOD HOPE BANK (IN LIQUIDA-
TION) V. THE SOUTH AFRICAN ASSOCIA-
TION, IN THEIR CAPACITY AS EXECUTORS
OF THE LATE MR. VAN LEER.
Company — Bank in liquidation — Call on
shares — Execution — Payment by executors
de bonis propriis — Rights of executors
against heirs and legatees.
Mr. Schreiner, on behalf of the applicants,
moved for leave to issue execution for £860, being
the amount due on calls in respect of twelve shares
registered in the name of the late Mr. Van Leer.
Mr. Juta appeared for the respondents.
After hearing the affidavits and arguments of
counsel, the Court granted a writ of execution
against the respondents, and failing assets, granted
a rule calling on them to show cause on 13th April
why they should not pay the amount of the calls
de bonis proprii*, reserving to the respondent* any
rights they may have against the heirs or legatees
of the estate.
MCLEROTH V. MCLEROTH.
Sir T. U ping ton, Q.C., appeared for the appli-
cant, and Mr. Shiel, as curator ad litem, for the
respondent.
This was an application to make absolute a rule
nisi calling upon the respondent to show cause why
he should not be declared of unsound mind and
incapable of managing his own affairs.
The Court having heard the evidence of Dr.
Dodds, medical superintendent of the Valkenberg
Asylum, Mowbray, declared the respondent of
unsound mind, and incapable of looking after his
own affairs, and appointed his wife, Mrs. Sophia
McLeroth, of Beyer's Hotel, Caledon, curator of
his property and guardian of his minor children.
VAN ZYL AND OTHERS V. DE BEER'S
EXECUTRIX.
Interdict— An interdict will not be granted
unless a prima-fade case has been made.
Mr. Searle moved for an order restraining the
respondent from obstructing the flow of the water
in a furrow leading from the farm Matroosfontein
to Wittedrift, in the district of Piquetberg.
Mr. Schreiner appeared for the respondent.
The Chief Justice, after having heard the argu-
ments of counsel, remarked that the case was
clearly not one for an interdict, as a prima-facie
case had not been made. No order would be made
at present, it being open to the applicants to bring
an action for damages, if they had incurred any,
costs to be costs in the cause.
C. CLACK AND OTHERS V. THE RESIDENT
MAGISTRATE OF ORAAFF-REINET.
Municipality — Municipal regulations — Re-
gulating " traffic and processions " — Sal-
vation Army — Ordinance 9 of 1836, and
Act 46" of 1882.
Mr. Juta appeared for the appellants, and Mr.
Schreiner for the respondent.
79
This was an appeal from a decision of the
Resident Magistrate of Graaff-Reinet, in a ease
in which certain members of the Salvation Army
were summoned by the Graaff-Reinet Municipality
for having contravened one of the Municipal
regulations by marching in procession through the
streets, blowing trumpets and beating a drum, to
the annoyance of the inhabitants, without having
obtained the consent of the Municipality. The
appellants were convicted, hence the appeal.
Mr. Juta having addressed the Court) in support
of the appeal,
The Chief Justice, without calling upon Mr.
Sehreiner to reply, said the appellants were some-
what misled by the decisions of the Court in the
Paarl and Wellington cases, which were decided
under Ordinance 9 of 1836, and whioh did not give
Municipalities the larger powers conferred on them
by Act 45 of 1882. Under the 109th section, sub-
section 4 of that Act, the Municipalities had power
to make bye- laws for suppressing nuisances, and
quite independently of nuisances, the 26th subseo-
tion gave them the power of making bye-laws for
regulating traffic and processions. The Graaff-
Reinet Municipality relied upon their 103rd regula-
tien,whkh provided that no person should sing, yell,
or create other objectionable noise in the streets
without the consent of the Municipality. He
(the Chief Justice) was not prepared to say that
the whole of this regulation was within the
power of the Municipality — for instance, as to
single person singing or beating a drum in
the street — but where there was a procession
of persons parading the streets Hnd beating
drums and playing instruments, it was clear
there was an infringement of the 103rd section,
to the extent to which the Municipality was
justified in making the regulation. In his opinion,
to that extent the regulation was entirely intra
vires, and the Municipality had the power to
provide that there should be no procession with
playing of musical instruments, without the
eoasent of the Council having first been ob-
tained. The Magistrate was right in his judg-
ment, and the appeal would be dismissed with
costs.
Mr. Justice Smith, whilst not prepared to differ
from the judgment of the Court, particularly
as Mr. Justice Buchanan had given a similar
decision, yet had some doubts as to whether a
bje-law of the kind in question came within the
meaning of the words " regulating traffic and pro-
cessions." He could quite understand that if a
procession made a nuisance, it would be a proper
regulation to prohibit it, but it seemed now as if a
Roman Catholic burial procession, passing along
the streets and chanting, would not have the right
to proceed at all without permission. The case
involved by the present appeal seemed to him a
doubtful one.
SUPREME COURT.
(IN CHAMBERS).
TUESDAY, MARCH 24.
[Before the Chief Justice (Sir J. H. DE VILLIER8)
and Mr. Justice Smith.]
ADMISSION.
On the motion of Mr. Sehreiner, Mr. Charles W.
A. Hayward, of the Inner Temple, was admitted
to practise as an advocate.
REQINA V. GUYSMAN.
Act 27 of 1882, section 9.
The Chief Justice remarked that the above case
had come before him for review from the Special
Justice of the Peace at Prinoe Albert. The
accused was charged with contravening Act 27 of
1882, section 9, and was convicted. There was no
evidence that the accused was drunk in any street
road, lane, or publio place, or in or near any shop,
store, hotel, or canteen, and consequently the con-
viction must be quashed.
REQINA V. HENDRIK FILLI8.
Act 18 of 1898, section 2.
This case came on review before Mr. Justice
Smith from the Resident Magistrate of Riversdale.
The accused was oharged under Act 18 of 1888,
section 2, and was convioted.
Mr. Justice Smith remarked that there was an
absence of motive and of evidence that the offence
had been committed by the accused. Under these
oircumstances the conviction must be quashed.
IN THE ESTATE OF THE LATE WILLIAM
WESLEY MARTIN.
Deed of transfer — Amendment of— Where
curators had purchased land and passed a
bond in their individual names, and not in
their capacity as curators, the Court
directed the necessary amendment to be
made.
Mr. Sehreiner moved for authority to the Regis-
trar of Deeds to amend a certain deed of transfer
and mortgage bond passed on the 80th November,
1881, by substituting for the individual names of
the curators of the said Martin their names in their
capacity as curators,
80
It appeared from affidavit that after Mr. Martin
had been placed under ouratorship, certain pro-
perty was purchased for the benefit of the estate
for £2,700, of which £1,300 had been paid off, and
a bond was passed for the balance in the in-
dividual names of the curators, and not in their
capacity as curators. The investment proved a
profitable one to the estate, as it yields about
£282 per annum. Authority was now asked for
the amendment of the deed of transfer. To this
the mortgagees, the General Estate and Orphan
Chamber, consented, and the Court granted the
order.
THE PETITION OF HARRY BOLUS.
On the application of Mr. Schreiner, the Court
granted six months' leave of absence, from the 1st
April next, to Mr. Harry Bolus, one of the official
liquidators of the Cape of Good Hope Bank.
PETITION OF FREDERICK J. VAN ZYL.
Mortgage Bond — Cancellation on grounds
that mortgagee had been paid.
Mr. Joubert applied for authority to the Regis-
trar ef Deeds to cancel a mortgage bond for
£150, passed by Gert J. van Zyl to one Balthaser
Klopper in 1857, on the ground that the said sum
had been paid to the mortgagee.
The Court granted a rule nisi, calling upon all
persons interested to show cause on the 15th May
next why the order should not be granted, notice
to be published in the Government Gazette, and
served on the other heirs in the estate.
PETITION OF PHILIP J. R. HODGES.
Guardians' Fund — Minors — Capital.
Mr. Juta applied for leave to draw from the
Guardians' Fund, out of a legacy bequeathed to
petitioner by one Mrs. Yob, the sum of £87, to be
advanced for one year towards his maintenance
and education while studying for the Civil Service
Examination. His mother was quite unable to
support him.
The Court intimated that application should
have been made to the Master in the first instance
Mr. Juta said that was very expensive. A report
from the Matter would cost £10 or £15.
The Chief Justice : But that cannot be. The
Master charges no fees, and there are only the
attorney's expenses. I should like to hear from
some attorney why the expenses are so high.
Mr. Juta said that the stamp on the Master's
report would be a guinea, besides the cost of a
second motion and possibly witnesses' expenses.
He remembered a case once, and the cost of
reference to the Master amounted to £20.
The Chief Justice : We must be careful about
referring matters to the Master if the expense is
so great.
The Court granted the order.
IN THE MATTER OF THE MINORS RUSSOUW.
Guardians' Fund — Minors — Capital — In
terest.
Mr. Webber moved for authority to the tutor
testamentary of the minors to draw from the
Guardians' Fund, out of moneys devolving upon
the minors from the estate of their deceased
grandfather, a sum of money to enable them to
provide a more suitable education than the pre-
sent income will allow.
It appeared from affidavit that the present in-
terest only amounted to £79 16s. 8d. per annum,
and an additional £100 would be required for the
purposes set forth in the petition.
The Court granted an order that so much
should be drawn from the capital as, together
with interest, would give each minor £60 per
annum until he or she had reached majority.
IN THE INSOLVENT ESTATE OF 181 DO BE
HIRSGH.
On the application of Mr. Schreiner, who repre-
sented creditors to the amount ef £4,200, Mr. G.
W. Steytler was appointed provisional trustee,
with power to carry on the insolvent's hotel busi-
ness at Muizenberg.
DIGEST OF CASES.
28
79
79
67
8
21
24
PAGE
Act 18 of 1873, Sec 2— Person charged under
wrong section — Conviction quashed —
Begina v. Briel
Act 27 of 1882, Bee. 9— Begina v. Guysman ...
Act 18 of 1888, Sec. 2— Begina v. Fillis
Action — Postponement of in consequence of
unavoidable absence of Defendant — Pay-
ment of tender — Preiss v. Gluckman
Attachment of funds in hands of agent —
Proper form of process is to sue out
execution — Cape of Good Hope Bank (in
liquidation) v. Vowell ... ... ... 2
Attachment of property ad fundandam juris-
dictionem — Issue of summons before rule
nisi had been granted — Rule discharged —
Taylor 6 Symonds v. Schunke ...
Attachment ad fundandam jurisdictionem of
heir's interest under will — In the estate
of the late J. Quin
Attachment of debt — Askew v. M oiler
Attachment of funds in hands of Company ad
fundandam jurisdictionem — Cessionary—
Binwald v. The German West African
Co. (6 Juta, 86) considered and followed —
Mackie, Dunn & Co. v. The Potchef stroom
Exchange Co. (Limited) ... ... 66
Balance of account — Action — Disputed items.
— Severn's Executors v. Ely ... ... 82
Clerk articled to Attorney allowed to continue
his articles notwithstanding an interval of
non-service for twelve months. In re.
Gibbon ... ... ... ... 84
Clerk articled — Application for admission as
an Attorney refused, — applicant not
having passed the whole of his time under
the immediate supervision of his prin-
cipal — In re Scheepers ...
Company — Bank in liquidation— Compro-
mises — The Cape of Good Hope Bank (in
liquidation) ... ... ... ...
Company — Bank in liquidation — Compromises
— Confirmation postponed sine die — The
Cape of Good Hope Bank (in liquida-
tionj ... ... ... ... ... it
Company — Bank in liquidation — Contribu-
tories — Application to vary list— The Cape
of Good Hope Bank (in liquidation) v.
Estate of Van Lier ... ... ...18-78
Company — Bank in liquidation— Inspection of
books— The Paarl Bank (in liquidation) 19
63
18
PAGE
Company — Bank in liquidation — Shareholders
past and present — Application to j.lace
past shareholders on list of Contribnturies
refused on the grounds, inter alia, that the
liquidators had failed to show that any of
the debts owing by the Bank had been
incurred before such past shareholders
had transferred their shares— The Paarl
Bank (in liquidation) ... ... ... 85
Company — Bank in liquidation — Vail en
shares— Writ of execution— Payment by
executors de bonis propriis — Bights of
executors agtfinst heirs and legatees —
The Cape of Good Hope Bank (in liqui-
dation) v. The South African Association 78
Company— Bank in liquidation - Contraot
entered into between liquidators and
debtor of Bank approved of by Court -
The Cape of Good Hope Bank (in liqui-
dation) in re Coronet's contract ... ... 60
Company— Bank in liquidation— Order in
terms of liquidators' report — Dividend—
Remuneration of liquidators — The Cape
of Good Hope Bank (in liquidation) ... 50
Company — Bank in liquidation— Contribu-
tories — Execution — The Paarl Bank (in
liquidation) v. Hugo & others 71
Company — Bank in liquidation — Compromise
— Former shareholders— Contributories —
Exoussion— Aot 23 of 1861— Where liqui-
dators have entered in to a compromise with
a shareholder and have not availed them-
selves of the powers conferred upon them
by Act 23 of 1861, Sec. 13, they cannot fall
back upon former shareholders who Had
bona jide transferred their shares to the
person with whom the liquidators have
compromised
Quare : Whether past shareholders can be
placed upon the list of contributories
before all the assets of the bank have
been realised — The Cape of Good Hope
Bank (in liquidation) v. East, Hunciman
& ethers ... ... ... ...73-75
Company — Bank in liquidation— Contribu-
tories- Deceased shareholder — Mutual
will — Partnership — Condictio indebiti
It is not safe or proper for an executrix to
pay to herself as surviving spouse any
portion of the common estate until her
11
DIGEST OP CASESi
PAGB
husband's shares in an unlimited banking
company have been transferred, or the
liability entailed by their retention has
been ascertained and provided for — The
Union Bank (in liquidation) in re the
Estate of the late F. W. Hofmeyr ... 64
Company — Bank in liquidation— Contribu-
tories — Executors — Payment de bonis pro-
priis — The Union Bank (in liquidation) v.
Watson's Heirs ... ... ... 72
Company — Bank in liquidation— Execution in
respect of calls due upon shares — The
Union Bank (in liquidation) v. Brentnall 76
Company — Bank in liquidation — Winding-up
Act — Absconding contributory— Powers
of liquidators in such cases — The Paarl
Bank (in liquidation) ... ... ... 81
Company — Winding-up — Appointment of
liquidators - In re the Damaraland Mining
and Exploration Co. ( Limited ) . . . ... 78
Contract — Breach — Damages — Prospecting
rights in territory of independent chief —
Groom A White v. The Bechuanaland
Exploration Co. ... ... ...40-46
Contract — Agreement with employe' — Con-
struction — " Absent from whatever cause "
—Thome <fe Stuttaford v. McNally ... 48
Costs— Security for— 8th and 14th Rules of
Court— Witham v. Venables (1 Menz , 291)
as explained by Lumsden v. The Kaffra-
rian Bank (8 Juta, 366), approved
A non-resident plaintiff who owns immovable
property in the Colony the value of
which after deduction of any mortgage
debts due thereon would suffice to pay the
probable costs of the action is relieved
from giving security for such costs —
Where however he is defendant in re-
convention he is obliged to give security
to perform the judgment of the Court
(cautio judicatum tolvi) — Taylor &
Symonds v. Schunke ... ... ... 14
Costs— Taxed of motion in High Court of
Justice — Provisional sentence
Where a person brings two actions and is un-
successful in the first he must pay the
costB of the unsuccessful action before he
will be allowed to proceed with bis
second action — Cape Central Railways v.
Walker
73
Curator — A curator of the estate of a person
of alleged defective mind will not be
appointed until a summons has in the
ordinary course been served on such
person and until he or his curator ad
litem has failed to show oause— The
Petition of Eleanor Hyland ... ... 80
Debt— Judgment— Stay of execution— Re-
fusal of Magistrate to take evidence as to
PAGE
ability of defendants to pay more than
amount tendered — Appeal — Judgment
amended by striking out stay of exe-
cution — Leave granted to respondents to
produce further evidence — Heydenrych
v. Salomon & McLoughl in ... ... 67
Debts due to Insolvent Estate— Purchase of
right to recover same — Partnership —
Final statement of accounts — Heyden-
rych v. Langermann ... ... ... 67
Deed of Transfer — Registration of ordered,
although a rule established in the Deeds
Office had not been complied with —
Atkinson v. The Registrar of Deeds ... 17
Deed of Transfer — Amendment of
Where curators had purchased land and passed
a bond in their individual names and not in
their capacity as curators the Court
directed the necessary amendment to be
made— In the estate of the late W. M.
Martin ... ... ... ...
De lunatico inquirendo — Hyland v. Hyland ... 81
De lunatico inquirendo — Parker v. Hopkins40-49-76
Diamond— Right to possession — Action for
recovery — Mathew v. Pentz ... ... 40
Divorce — Damages -Assault — Claim in re-
convention — Oliver v. Oliver and Peckover 61
Divorce — Damages — Unstamped affidavits
allowed to be read
Application to make absolute rule nut permitt-
ing applicant to sue in forma pauperis
refused and rule discharged where it
appeared from affidavit that applicant had
realised joint estate and remained in pos-
session of proceeds — Levatte v. Levatte
& Henderson ... ... ... ... 76
Evidence — Commission de bene esse — Teenga
v. Garlick ... ... ... 84
Fraud and Misrepresentation — Principal and
Agent — Principal's authority exceeded by
agent — Postponement owing to absence of
important witness — Wright & Williams... 88-57
Funds belonging to person reputed to be dead
in the hands of Trust Co.— Application
for payment of
The proper course is to appoint an executor
and administer the estate as of a deceased
person— In re Kelson ... ... ... 8
Guardians' Fnnd— Minors— Capital— Interest
— In re the Minors Russouw ... ... 80
Guardians' Fund— Minors— -In re the Minor
Hodges ... ... ... ... 80
Goods — Purchase— Repudiation by buyer—
Hulbert v. Caporn & Marriott ... ... 60
Insolvency - Appointment of new trustee for
specific purpose — In the Insolvent Estate
of Ackermann... ... ... ... 69
Insolvency — Provisional Trustee — Application
for appointment of co-trustee
DIGEST OF CASES.
Ill
PAGE
Where the Court has appointed a provisional
trustee the appointment will not be set
aside unless at a meeting of creditors one
or more trustees are elected — In the In-
solvent Estate of C. J. Viljoen ... ... 59
Insolvency — Transfer of shares by insolvent
— Application to take evidence on com-
mission — In the Insolvent Estate of H.
xleatn ••• ••• ••• ••• (*■
Insolvency — Sequestration of estate — Pro-
visional order for set aside on want of
proof of insolvency — Act 38 of 1884 —
Moller v. Askew .., ... ... 11
Interdict on money in hands of third person —
Set off — Promissory notes not yet due —
Contempt of Court — Levin v. Garlick ... 25
Interdict granted restraining removal and sale .
of furniture attached by judgment of a
Resident Magistrate pending an action to
be brought for recovery of rent — Webster
v. Solomon ... ... ... ... 89
Interdict — An interdict will not be granted
unless a prima facie case has been made —
Van Zyl v. De Beer's Executrix 59-75-78
Interdict — Restraining sale of effects attached
by Deputy-Sheriff pending decision of
Court as to property in said effects —
D'Axc y. Benson <fe McDermott ... ... 64
Judgment — Application for leave to sign
against plaintiff for failure to proceed
with his action — Dal ton v. Quine ... 60
Lease — Hire and purchase system — Cancel-
lation of agreement owing to failure of
monthly payments — Tacit renewal of
lease — Claridge v. Kellaway ... ... 47
Lease— Exeeutable — Judgment— Act 19 of
1864— Practice— Graaff v. Klerck ... 1
Libel — Application for particulars of alle-
gations contained in alleged libel refused}
the Court being of opinion that the
charges made were sufficiently " specific "
— Sturrock v. Birt ... ... ... 20
Libel — Damages — Company — Meeting of
Shareholders — Directors' Report — Pub-
lication — Boose v. Woodhead & others ... 61
Liquidator — Leave of absence— Petition of
H. Bolus ... ... ... ... 80
Masters and Servants' Act— Police Act —
Using abusive and obscene language —
Conviction quashed — Regina v. Loontjes 71
Minor — Authority given to Master to con-
tinue payments toward* maintenance and
education—//* re the Minor Kemper ... 64
Minors — Application te draw from South
African Association • sufficient funds to
provide for maintenance and education —
In the Estate of the late J. A. Laubscher 1
Mortgage Bond — Cancellation of cession—
Non-compliance with Aot 8 of 1864, Seo.
PAGE
13 — Rights of mortgagor not affected —
Mostert v. Registrar of Deeds ... ... 19
Mortgage Bond — Application for cancellation
o£—In re Groove ... ... ... 18
Mortgage Bond — Application for cancellation
of refused where mortgagor was exe-
cutor ef mortgagee's estate — In re Burger 19
Mortgage Bond — Cancellation on grounds that
mortgagee had been paid— In re P. J. van
£A\X •• • •• • •• • ••• ••• Ov
Mortgage Bond— Provisional sentence on
postponed where mortgagor had denied
his signature — Executors of De Klerk v.
De Klerk ... ... ... ... 29
Mortgage Bond — Misdescription in Debt Re-
gister — The Dutch Reformed Church,
Adderley-street v. Registrar of Deeds ... 75
Mortgage bonds — Satisfied and subsequently
lost or mislaid — Application for cancel-
lation of — Rule existing in Registry of
Deeds, Cape Town — Refusal to comply
with rule by Registrar of Deeds, King
William's Town— Rule nut granted— The
Cape of Good Hope Bank (in liquidation) 60
Mortgage — Raising of loan by on property of
deceased person — In re Glynn (deceased) 3
Mortgage of landed property in estate of
deceased person to pay off bond and other
debts— In re Martin (deceased)... ... 11
Mortgage of landed property to meet calls on
shares in bank in liquidation — In the
Estate of the late John Wright, M.D. ... 1
Mortgage of landed property in estate of
deceased person to meet calls on shares in
bank in liquidation— In re the Estate of
Thomas Hall (deceased) ... ... 11
Mortgage — Application to raise loan on for
purpose of executing necessary repairs
and satisfying debts— In the Estate of
Samuel Phillips ... ... ... 36
Municipality — Municipal Regulations— Reg-
ulating " traffic and processions " —
Salvation Army — Ordinance 9 of 1836 and
Act 45 of 1882— Clack and Others v. The
Resident Magistrate of Graaff-Reinet ... 78
Municipality — Municipal Regulations— Cess-
pools — Where a Municipality has by its
regulations power to close cesspools it
cannot compel an inhabitant to empty
and close a cesspool situated on his land
— Van Heerden v. The Municipality of
Viotoria West... ... ... ... 70
Negligence — Damages — Bursting of dam —
Vis Mcy'or— Kunn v. Schalkwyk ... 66
Non-jurisdiction and Irregularity — Act 20 of
1856— 190th Rule of Court— " Judicial
Proceedings capable of being reviewed " —
Where a Resident Magistrate not in his
magisterial capacity but as " Head of the
District " had settled a dispute between
two natives such a proceeding was held
IV
DIGEST OF CASES.
PAGE
not to be a judicial proceeding capable
of being reviewed within the 190th Rule
of Court— Duna v. Sabenkola ... ... 70
Nuisance — Municipality — Distillery refuse—
Open drain — Interdict suspended — The
Paarl Municipality v. Blignaut... ... 77
Partnership— Statement of account — Alleged
breach of agreement — Dissolution by
mutual consent — Counter-claim — Ross v.
Scott & Armstrong ... ... ... 24
Process in aid of judgment of High Court —
D'Arc v. Benson & McDermott... ... 19
Process in aid of judgment of Eastern Dis-
tricts Court — Scallan's Executors v.
Voortman ... ... ... ... 20
Promissory Note — Unstamped — Penalty —
Provisional sentence — Executors of
Loynes v. Cochrane ... ... ... 49
Report, First, of Liquidators— Paarl Bank ... 12
Report, Second, of Liquidators— Cape of
Good Hope Bank ... ... ... 21
Sale — Conditions — Payment by instalments —
Provisional sentence refused where period
within which first instalment was to have
been made had not expired — Botma v.
Botma ... ... ... ... 72
Securities in possession of bank— Refusal to
realise — The Union Bank (in liquida-
tion)' ...
80
Ship — Arrest ad fundandam jurudictionem —
In re the barque " Hera " ... ... 20
Ship— Cesser of charterer's liability — Lien by
shipowner for freight, dead freight and
demurrage — Custom of port — Case
governed by English law — Lane v. Sorens-
sen in re u Saga " ... ... ... 26
Support adjacent and subjacent — Lease of
diamondiferous claims — Trespass — Act 19
of 1888- In the absence of stipulation to
the contrary in a lease the right to lateral
support exists as a natural right incident
to the lessor's hand when the latter is the
adjoining owner— Louden and South
African Exploration Company v. Rouliot 4
Surety— Bond — Partnership — Where a person
has become surety for auother under a
bond and has renounced the btntficia
nothing that such other person may have
done can affect the rights of the bond-
holder against the surety- Green & Co. v.
Be vend ge ... ... ... ... 69
Transfer— Bond on property — Refund of
purchase money — Refusal to cancel — In re
Cunningham ... ... ... ... 76
Trespass — Damages— Road — Divisional Coun-
cil—Acts 27 of 1884 and 40 of 1889—
Perpetual interdict — Gill v. Hirsch ... 68
PAGB
Trespass— Application to make rule nisi
absolute — Rule suspended — Action to be
brought— Colonial Orphan Chamber v.
Marnits ... ... ... ... 76
Trespass — Interdict — Rule nisi made absolute
— Meyer v. Reisberg ... ... ... 76
Trustee — Extension of time within which to
file final accounts allowed — In the Insol-
vent Estate of Aunn ... ... ... 36
Trustees — Appointment of trustees by
Chancery Division of High Court of
Justice (England) confirmed — Jn re
Luscombe's Trust Fund ... ... 72
Trusteeship— Application to be relieved of —
Consent of joint trustee- In the Estate '
of the late John Miller... ... ... 84
Venue — Change of — Regina v. Manel ... 88
Will — Construction — " Absolute right " or
" defined interest " — Morgan & Coltman v.
Executors ef Grower ... ... ... 8
Will — Mutual— Codicils made subsequently to
testator's death — Exception.
Where under a mutual will a daughter had
acquired a " vested interest " her execu-
tors are the proper persons to sue and not
her children — Marais v. R ens burg ... 10
Will — Where F., who had inherited certain
money under the will of his father, had
deserted his wife and had not contributed
to her support or to that of the children of
the marriage, he was on his wife's petition
ordered to pay over to her half the amount
coming to him under his father's will —
Petition of A. J. Fourie ... ... 64
Will— Alienation of landed property pro-
hibited — Quitrent — Application for leave
to sell— In the Estate of W. Pretorius
(deceased) ... ... ... ... 84
Will — Executors exempted from filing
accounts — Ordinance No. 104 — Notioe —
Where a testator has by his will exempted
his executors from filing the ordinary ad-
ministration accounts notice ought to be
given to the executors before calling upon
them to conform to the provisions of
Ordinance 104 — In the Estate of the late
John Jamieson ... ... ... 78
Will — Landed Property— Executor dative-*
Maternal inheritance — Debts due by
estate — Where under a will the sale of
landed property had been prohibited the
Court refused to empower an executor to
sell the property to meet existing claims
until satisfied that sufficient money for
that purpose could not be raised by way of
mortgage — In the Estate of the late
J. S. Masters ...
76
TABLE OF CASES.
PAGE
Abrahamae, Dirk, Petition of ... ... 101
Abrahamse ▼. Abrahamse... ... 118, 122, 148
Adkins, H. J., tn re ... ... ... 124
Anderson A Murison v. The Omarnru G. M.
^>o« • • # » • • * • • • • • • • •
Arthur, Mary, in re
Askew v. Moller ...
Atmore, Elizabeth, Petition of
Attwell, R. 6., in re
Aaret v. Executor of Haarhoff
.pate v. ^m ei ... ... ... • • •
Benally ▼. Benally
Berry, R. J., m re ... ... ...
Beukes, Gideon, in re
Bezoidenhoud, M. E. J., tit re
Bibbey v. Barnard ... ... ...
Birch, W. T , in re
Board of Executors v. Malan
Bodley v. Bodley ...
Boonzaier v. Castens
Botha, J. £L, in the estate of
Botha, Ii. J., in re the Minor children of ...
Broad, Charles, in re
Brown, J. M., tit re ... ... ...
Brown A Bate v. Green ...
Brnnner v. de Villiers
Bultfontein M.B. v. L. A 3. A. Exploration
Company A Armstrong
Burgers r. Burgers
Barn, 8. J., Petition of ...
Campaan v. Campaan
Cape Central Railways (in liquidation)
Cape of Good Hope Bank (in liquida-
tion) 82, 86, 99, 121, 166
Cape of Good Hope Bank (in liquidation).
Third Report
Cape of Good Hope Bank (in liquidation)
tn re Arnoltz's Estate...
Cape of Good Hope Bank (in liquidation) v.
Arnoltz A Co.
Cape of Good Hope Bank (in liquidation) v.
Arneltz, Junior ... ... ...
Cape of Good Hope Bank (in liquidation) v.
xycneys ... ... ... ...
Cape of Good Hope Bank (in liquidation) v.
Forde A Co. ... ... ... ...
Cape of Good Hope Bank (in liquidation) v.
Pjlkington ...
88
124
128
121
81
182
103
186
83
124
120
88
147
117
139
169
163
166
169
169
126
111
... 148
... 143
... 170
... Ill
84,110
112
99
103
108
82
137
97
PAGE
Cape of Good Hope Bank (in liquidation) v.
Porter ... ... . . ... 104
Cape of Good Hope Bank (in liquidation) v.
Twentyman ... ... 163, 170
Cape of Good Hope Bank (in liquidation) v.
Van Licr's Executors... ... 104, 106
Cape of Good Hope Bank (in liquidation) v.
Watson's Heirs A Executors ... 104, 106
Cape of Good Hope Bank (in liquidation) v.
Whitton ... ... ... ... 164
Carelse v. Carelse ... ... ... 183
Churchwardens, Dutoh Reformed Church,
Aliwal North ▼. Green ... ... 144
Claremont, Rondebosch, A Mowbray Muni-
cipalities v. Ohlsson f B Cape Breweries ... 84
Cloete, J. H., in re
Cohen v. Stegmann ... ... ... 149
Combrinck v. My burgh ... ... 130,136
Conradie, D. J., in the Insoluent Estate of ... 96
Copeland v. Short A Co. ... ... 141, 143
Coronel v. Ward A Wessels ... 134, 159
Cranko's Executors v. Van Schoor... ... 103
Cronge, P. D., tn re
Cunningham, M., Petition of
Currie, W. J., tn re
Daly, Hendrika C, Petition of
Damaraland Mining A Exploration Company
(in liquidation) in re ...
De Jager, M M. A., in re ...
De Klerk v. Marais
Dessauer v. Dessauer
De Vaal, B. J., in re ... ...
De Villiers v. Baartman ...
Duncan v. Tiengo
Du Plessis, J. P., tit re
Du Plessis, C. 8., tn re
Du Plooy, C. W., tn re
Du Toit, J. J., Petition of
Dutch Reformed Church v. The Master A
South African Association
Eaton, A. M., Petition of ...
Eaton, Robertson A Co. v. Oliver ...
Erasmus, J. L., tn re ... ... ...
Estate, Robertson A Bain v. du Plessis
Evans, J. B., in the estate of the late
Executors, Mary Quin, v. Executor, John
Qnin ... ... .» 184, 159
Forrest v. Ohlsson's Cape Breweries ... 84
88
111
133
166
171
... 103
... 188
... 84
... 124
... 103
118, 121, 124
... 103
... 147
... 142
... 153
122
169
182
124
117
111
u
TABLE OF CASES.
PAGE
Frylinck, J. B. P., tn re ... ... ... 103
Gasiep v. Salie and another ... ... 147
Gladstone, G., Petition of ... ... ... 86
Go ugh, E. M M in re ... ... ... 103
Groom <fe White v. The Bechuanaland Ex-
ploration Company, (Limited) 110, 128
Hall <fc Co. v. October ... ... ... 103
Harris v. Behm ... ... ... ... 128
Harris & Co. v. Grodner ... ... ... 102
Henning, J. C, tn re ... ... ... 83
Hill «fe Paddon v. The Colonial Government 147
Hirst v. Muller, Smith & Co. ... 103, 1 18
Holliday, H., in the estate of the late ... 171
Holme, D. H., tn re ... ... ... 81
Holtzhaust-n, A. M., in re ... ... ... 103
Honey borne v. Honey borne ... ... 139
Hopkins v. Hopkins ... ... ... Ill
Hopkins, M. A., in the estate of ... ... 98
Hughes, I. P., tn re ... ... ... 103
Humphries v. Speneer ... ... ... 170
Hyams, S., tn re ... ... ... ... 83
Impey, Walton <fe Co. v. Perkins ... ... 82
Jones v. Cauvin <fe Co. ... ... ... 168
Joubert, P. P., and Others, Petition of ... 170
Kidwell, A. B., tn re ... ... ... 133
Kleyn, M. G. 8., in the Insolvent Estate of... 170
Knox, D., Petition of ... ... ... 169
Knysna, C. G. M. Co., (Limited), in re ... 134
Lamb, J., tn re ... ... ... ... 120
Lawrence v. Ward <fc Wessela ... ... 134
Lawrence & Sons, in re ... ... ... 103
Levatte v. Levatte ... ... ... 119
Liebenberg v. Westhuysen ... ... 102
Liebenberg v. van der Westhuysen ... 166
Lind v. Van der Veen ... ... ... 112
Lischtly v. Strangmann ... ... ... 168
Loedolff, C, tn re... ... ... ... 120
Louw v. Theron ... ... ... ... 81
MacKenzie, M. E., tn re ... ... ... 169
Marais, I. S. J., tn re ... ... ... 147
Maritz, P. J., in re ... ... ... 103
Maroney, Mary, tn the estate of the late ... 166
Master Supreme Court, Petition of ... 142
Master Supreme Court v. Buxman... ... 146
McNaughton's Assignees v. Louw ... ... 124
Mellish, v. Floris... ... ... ... 146
Miller v. The Richmond Licensing Court 124, 146
Molteno's Executors v. Elliott ... ... 82
Momsen, J. A. L., in re ... ... ... 103
Morkel, W. V , tn re ... ... ... 87
Mostert, P. J. C, tn re ... ... ... 83
Mulvihal, T., Petition of ... ... ... 138
Mutual Society v. Claremont Hall Trustees 82
My burgh's Assignees v. Klerck ... ... 103
Myekulu v. Simkins ... ... ... 116
Nel and others v. Nel's Executrix ... ... 126
Nezar, G. A. T., tn re ... ... ... 83
Niehaus v. Niehaus ... ... ... 188
Jforval, J. J., tn re ... .., ... 88
PAGE
Nowitz, B. I., tn re ... ... ... 120
Oates, M. A., Petition of ... ... ... 97
Oates v. Trustee Insolvent Estate of Oatea 99
Oliver, R., in the Insolvent Estate of ... 134
Oliver, D. H., and others, Petition of ... 86
Omaruru, G. M. Co. (in liquidation) in re ... 119
Overbeek, H. M., in the Estate of... ... 124
Paarl Bank (in liquidation) v. Executrix 6
Heirs of Roux ... ... ... 186
Paarl Fire Assurance Co v. Gildenhuys ... 82
Phillips v. Phillips ... ... ... Ill
Pienaar's Executors, Petition of ... ... 142
Piet v. Piet ... ... ... ... 113
Port Elizabeth Town Council, Petition of ... 147
Pote, Charles, in the Estate of the late ... 101
Preiss v. Gluckman ... ... ... 116
Prince, Vintcent & Co. v. Lizamore ... 124
Regina v. Arcndse ... ... ... 97
Regina v. Arends ... ... ... 114
Regina v. Fredericks & Muhler ... ... 126
Regina v. Giliome, Sen. ... ... ... 166
Regina v. Haberkorn ... ... ... 102
Regina v. Logan ... ... ... ... 119
Regina v. Maseri A Ramsitsani ... ... 113
Regina v. Plessis... ... ... ... 102
Regina v. Plessis & Finnes ... ... 130
Regina v. Russouw ... ... ... 113
Rensberg v. Prins and others ... ... 183
Rensburg, M. C. J., Petition of ... 120, 166
Richards, M. A., Petition of ... ... 146
Riddell v. Riddell 84
Rigal v. Grodner... ... ... ... 102
Ross & Co. v. Perle ... ... ... 146
Rossouw, J. J , tn re ... ... ... 133
Rothwell v. Rothwell ... ... ... 147
Rudd, E. A., in re ... ... ... 103
Russouw v. Russouw ... ... ... Ill
Samodien, in the Estate of the late 124, 166
Savings Bank v. De Beer... ... ... 166
Scheepers, tn re ... ... ... ... 134
Schoeman, L. J., in the Insolvent Estate of 118
Searight v. Robertson ... ... ... 83
Sellar Brothers v. Cranna... ... ... 103
Shakofsco v. Van Noorden ... 101, 121
Sichel v. Kannemeyer ... ... ... 146
Sluiter v. Malan ... ... ... ... 118
Sluiter <fe Neser v. Medcalf ... ... 146
Smailes, P., Petition of ... ... ... 84
Small v. Frames ... ... ... ... 147
Smith v. Gluckman ... ... ... 83
South African Assurance Society v. Hartingh 118
South African Assurance Society v. Muller... 118
South African Loan & Mortgage Agency,
Petition of ... ... ... ... 169
Standard Bank, Petition of ... ... 86
Standard Bank v. Jooste ... ... ... 146
Staples v. Swansf elder ... ... ... 140
Stegmann v. Cohen ... ... 82, 102, 149
Stephan v. Lipsett 6 wife... ... ... 1 83
TABLE OF CASES.
•••
111
PAGE
Stewart v. Kingon ... ... ... 101
Steynsburg Steam Mill Co., in re ... ... 156
Steytler v. Cohen... ... ... ... 118
8toffels, Philida, Petition of ... ... 121
Straben v. The Cape District Waterworks
Company ... ... ... ... 171
Taylor & Symonds v. Sohunke ... ... 88
Teengs ▼. Garlick ... ... ... 182
Teengs t. Garlick, in re ... ... ... 156
Thompson, A., in re ... ... ... 147
Tiran, J. P., in the Estate of the late ... 98
Topp v. Topp ... ... ... ... 103
Truter, C. J. M., Petition of ... 142, 166
Union Bank (in liquidation) ... ... 101
Union Bank (in liquidation), in re Sir T.
Scanlen'e compromise... ... ... 122
Union Bank (in liquidation) v. Shackell ... 142
Union Bank (in liquidation) v. Uys 118, 119
Union Bank (in liquidation) v. Watson's
Heirs <fr Executors ... ... ... 104
Uys v. Baartman ... ... ... ... 118
Van der Merwe, W. J., »» re ... ... 147
Van Heerden, J. L M in the Estate of the late 171
Van Heerden, L. C, Petition of ... ... 170
Van Rensburg, M. C. J., Petition of 120, 166
Vin Wyk, J. A. B., in re 142
Van Zyl, J. B., in the Estate of the late 81
Van Zyl, P. J., Petition of ... ... 103
Van Zyl, P. P. J., in re 124
Van Zyl, in the Insolvent Estate of ... 81
Venter, C., Petition of 81
PAGE
Viljoen, C. J., in the Insolvent Estate of ... 154
Villa v. Villa Ill
Vink's Executors v. Uys ... ... ... 124
Vogelgezang, M. L., in re ... ... ... 120
Von Below v. Tiengo ... ... 118, 121, 124
Walker v. The Cape Central Railways (in
liquidation) ...
Walker v. The Cape Central Railways (in
liquidation), in re
Watson's Executors v. Broderick ...
Watson's Executors v. Watson
Wellington Bank (in liquidation) ...
We8thuysen v. Heyns and others ...
Wheeler, Petition ef
Wheeler v. Wheeler
White, J. G., in re
White, Muller & Go. v. Cohen
Wilke, in the Estate of the late
Williams v. Samuels
Williams v. Snooke
Wilson v. Hall & Weasels ...
Wilson v. Wilson & Minnaar
Woodman, C, Petition of ...
Worcester Municipality v. The Colonial Gov-
ernment ... ... ... ...
Wright v. The Colonial Government
Wright v. Williams
Zahn v. Du Preez
Zeederberg e\ Duncan v. Hall
Zoutspansberg Palmietfontein Estate Co.,
•f» r v»«« ••• ••» ••• ••• I XX
85
152
... 128
... 169
... 81
85
... 113
122, 146
... 103
... 83
... 9o
... 83
... 170
... 107
101, 146, 147
... 169
126
145
99
114
82
" CAPE TIMES " LAW REPORTS,
COURT
(IN CHAMBERS).
TUESDAY, APRIL 7.
[Before Mr. Justioe BUCHANAN.]
ADMISSIONS.
On the motion of Mr. Searle, Mr. Robert George
Attwell was admitted to practise aa an attorney
and notary public
On the application of Mr. Thome, Mr. David
Henry Holme was admitted to practise as an
attorney and notary public.
IN THE
INSOLVENT ESTATE OF
P. J. VAN ZYL.
FBEDEBIOK
On the motion of Mr. Molteno, authority wat
given to the liquidators of the South Afrioan
Bank to sign their consent to the discharge of the
above insolvent in terms of Ordinance 6 of 1843,
section 117.
LOUW V. THEBON.
Attachment — Judgment — Rule 329 — Appli-
cation for an order directing the Sheriff of
the Colony to attach account books and
collect outstanding debts refused, there
being no precedent for such a procedure.
Mr. Webber applied for an order directing the
Sheriff of the Coleny to attach the account books
of the defendant and to collect the outstanding
debts for the purpose of applying the proceeds in
redaction of the amount of a judgment of the
Supreme Court in a suit between the parties.
It appeared from the statement of counsel that
judgment had been obtained under rule 329, and
the plaintiff now prayed that the books might be
attached and the outstanding debts recovered.
As there appeared to be no precedent for the
Sheriff's undertaking the collection of assets in an
estate, Mr. Justice Buchanan suggested that the
applicant should take proceedings under the
Insolvent Ordinance.— No order was made.
M
THE WELLINGTON BANK (IN LIQUIDATION)
Company — Bank in liquidation — Private
liquidation — Application for an order
fixing the time within which claims should
be proved refused on the grounds that as
the liquidation was a private one the Court
had no power until the parties concerned
had put themselves under the operation of
the Winding-up Act.
Mr. Juta applied for an order fixing the time
within whioh all outstanding bank-notes should
be presented for payment and all claims proved.
The liquidation was a private one, and the present
application was made in accordance with a resolu-
tion of the shareholders.
Mr. Justioe Buchanan said he was afraid the
Court had no power te grant the application as
prayed for, and suggested, as had been done in the
case of the South Afrioan Bank, that the parties
should apply to be placed under the Winding-up
Act.— No order was made.
IN THE ESTATE OF THE LATE JOHANNES B.
VAN ZYL.
Mr. Molteno moved, on behalf of Martha Louisa
van Zyl, widow of the late Johannes B. van
Zyl, for authority to subdivide and transfer
to the legatees of the said estate cortain denned
portions of the farms Qrootfontein, Bland's River,
and Brak Vlei, situated in the division of Cradook.
Provision had been made under the will for the
subdivision and transfer.
The Court granted the order as prayed for.
THE PETITION OF CHRISTIAN VENTEB.
In this matter, whioh arose out of the pre-
ceding application, Mr. Molteno applied for
authority to the petitioner to subdivide and
transfer to certain minor children defined shares
of property bequeathed to them, with power to
sell the same in conjunction with the sale of the
portions belonging to the major children.
The order was granted as prayed for, the pro-
ceeds coming te the minor ohildren to be handed^
over te the Guardians' Fund*
82
THE CAPE OF GOOD HOPE BANK (IN
LIQUIDATION.)
Company — Bank in liquidation — Authority
given to Liquidators to accept certain
assignments in discharge of assignors
indebtedness to the bank.
Mr. Scbreiner, on behalf of the liquidators of
the above bank, applied for authority to accept
certain assignments offered by Messrs. Arnholz,
Stockdale, and Daly in respect of their Indebted-
ness to the bank.
The assignors were indebted to the
bank in the sums of £2,768, £8,221, and
£450 respectively, and it was estimated that
the property assigned would in the first two oases
at least realise those amounts. The offers had
been made to avoid compulsory sequestration, and
they were the best the liquidators oould obtain
under the circumstances.
The Court granted the necessary authority.
SUPREME COURT.
MONDAY, APRIL 13.
[ Before the Chief Justioe (Sir J. H. DB VILLIBB8)
and Mr. Justice BUCHANAN.]
PROVISIONAL ROLL.
PAABL FIRE AS8UBAN0B COMPANY V.
OILDENHUYS.
On the motion ef Sir T. Upington, Q C, the
final sequestration of the respondent's estate was
ordered.
STBGMANN V. COHEN.
Insolvency— Securities— Ordinance 6 of 1843 r
section 30 -Where a petitioning creditor
had omitted to put a ralue on securities in
his possession the Court refused to make
an order for compulsory sequestration.
Mr. Searle appeared for the applicant.
Mr. Juta for the respondent.
This was an application for the oompulsery
sequestration of the respondent's estate by reason,
as it was alleged, of his having preferred certain
creditors, and thereby committed an act of insol-
vency.
Mr. Juta, in opposing the application, contended:
m That the respondent was net insolvent ; (2)
that the petitioner was a seoured creditor, inas-
much as he held two life policies, one on the life
of the respondent for £600, and another on that
of his wife for £260, besides having a lien on the
furniture for rent ; and (8) that the applicant had
not complied with Ordinanoe 6 of 1848, section
80, inasmuch as he had not valued his securities.
Counsel also referred to the cases of the " Stan-
dard Bank v. Winterbach " (4 Juta, 829), the
a Standard Bank v. Kruger 6 Co." (4 Buch.,
B.D.O., 47), u Fleming and Mudie v. Van Eysaen "
(4 Juta, 866), and " Roberta v. The Cape ef Good
Hope Bank" (6 Juta, 184).
Mr. Searle, in reply, explained that the applicant
had not put a value on his securities through an
oversight, that the actual surrendered value of the
policies was only £10, and submitted that Section
80 oould not have been intended to apply to such
cases as the present, in whioh the securities were
merely nominal.
The Chief Justioe remarked that no sufficient
explanation had been given as to why the securi-
ties had not been valued. He was of opinion
that the rule established in many of the cases,
more particularly in that ef Roberts v. The Gape
of Good Hope Bank, applied, and consequently
the order ought to be discharged.
Mr. Justice Buchanan expressed his opinion in
similar terms to those of the Chief Justioe.
ZBEDEEBEBG AND DUNCAN V. HALL.
Mr. Gastens moved for provisional sentence on
two promissory notes, one for £678 7s. and the
other for £607 7s. lid.— Provisional sentence
granted.
IMPBT, WALTON AND OO. V» PERKINS.
On the motion of Mr. Tredgold a decree of civil
imprisonment was granted against the respondent.
MOLTENO'S EXECUTORS V. ELLIOTT.
On the motion of Mr. Molteno, the final seques-
tration of the respondent's estate was ordered.
MUTUAL SOCIETY V. CLAREMONT HALL.
Mr. Graham moved for provisional sentence on
a mortgage bond for £1,100, with interest at 6
per cent, from 1st July, 1890. — Provisional sentence
granted and property declared executable*
CAPE OF GOOD HOPE BANK (IN LIQUIDATION)
V. DENEYS.
Company — Bank in liquidation — Compro-
mises—Sanction of Court — Sequestration,
83
T*
Compromises entered into between the liqui-
dators of a Company placed under the
operation of the Winding-up Act and a
debtor are merely provisional and are not
binding agreements until the sanction of
the Court has been obtained.
Mr. Schreiner appeared for the official liquida-
tor! of the above bank.
Sir T. Upington, Q.O., for the respondent.
This was an application by the liquidators of the
above bank for an order for the final adjudication
of the respondent's estate. It appeared from an
affidavit sworn to by the liquidators that the
respondent was indebted to the bank in the sum of
£11,340 in respect of 878 shares, of which he was
the registered holder. In respect of this claim
Mr. Deneys had entered into an arrangement with
the liquidators to assign his estate, and had actually
transferred to them certain moneys and shares.
Before, however, the liquidators had received the
sanction of the Court to this compromise the Court
gave judgment in the case of the Cape of Good
Hope Bank (in liquidation) v. Bast, Runoiman,
and ethers ("Cape Times" Law Reports. Vol.
I, page 73), and the liquidators being desirous ef
retaining their rights against past shareholders,
who had transferred their shares to the respondent
declined to accept the assignment and applied for
the final sequestration of the estate.
Sir T. TJpington, Q.C., in applying far discharge
of the order, contended that the liquidators were
estopped from repudiating the agreement into
which they had entered with respondent, and that
they should be ordered to complete the transaction.
Counsel further contended that the general body of
creditors could in no way be benefited by the
sequestration of the estate.
The Chief Justice remarked that the case was
peculiar. The liquidators had entered into an
agreement with Mr. Deneys to accept an assign-
ment of bis estate in settlement ef their
claims against him, but before the transaction had
been finally ooncluded judgment was given in the
case of the Cape of • Good Hope Bank (in liquida-
tion) v. East, Runchnan and others. To effect suoh
a compromise as the present the sanction of the
Court was necessary, but this sanction had not
been obtained and consequently there was no bind-
ing agreement between the parties. Again, no
actual deed of assignment had been executed, and
under all the oircumstances of the case he was of
opinion that the liquidators were not estopped
from now applying to the Court f er sequestration
of the estate. He failed to see that the defendant
had been injured by the circumstance that there
had been already an assignment, there was no
denial that the estate was virtually insolvent, and
it could make no difference to Mr. Deneys whether
his estate was sequestrated or assigned. The
liquidators had a legal right to ask for the seques-
tration of the estate, and consequently the pro-
visional order would be made absolute with costs.
Mr. Justioe Buchanan, in concurring with the
judgment of the Chief Justioe, remarked that
agreements between liquidators and shareholders
or others must in their very nature be provisional,
and that until the sanction of the Court had bean
obtained they oould not be valid.
SAABIOHT V. BOBEBT80N*
On the motion of Mr.Castems, the final ad judical
tion of defendant's estate was ordered.
SMITH V. GLUOKMAN.
On the application of Mr. Maskew, provisional
sentence was granted for £168, less £100 paid on
account.
WHITE, MULLEB AND GO. V. COHEN.
On the motion of Mr. Casteas, provisional sen-
tence was granted for £87 14s. lid.
BIBBBY V. BABNABD.
Mr. Watenneyer moved for provisional sentence,
under Rule 829, far £69 8s.— Provisional sentence
granted.
WILLIAMS V. SAMUELS.
On the motion of Mr. Melteno, provisional sen-
tence was granted for £80.
ANDEBSON AND MUBIBON V. THE OMABUBU
GOLD-MINING COMPANY.
On the application of Mr. Schreiner, provisional
sentence was granted for £212.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was 'granted i Stephanus
Francois du Toit, Johannes Christian Henning,
Johannes Jacobus Norval, Petrus Jacob Christian
Mostert, Gysbert Albertns Tiberius Neaar, Simeon
Hyams, Pieter Daniel Cronge, and Richard John
Berry.
GENERAL MOTIONS.
TAYLOB AND 8YMOND8 V. 80HTTNKE.'
Mr. Searle, for the applicants, applied for an
order to make the award of the arbitrators a rule
of Court, and for the delivery of a bend entered
into as seourity for costs.
Mr. Scbreiner, who appeared for the respondent,
consented, and the award was made a rule of
Court.
84
DESSAUER Y. DE8SAUER.
On the application of Mr. Bead©, the rule nisi
was made absolute dissolving the marriage sub-
sisting between the parties.
THE PETITION OF PUBDON 6MAILE&.
On the motion of Mr. Webber, the rule nut was
made absolute for the registration in petitioner's
name of a certain lot of ground situated in the
village of Seymour.
RIDDBLL V. BIDDBLL.
On the application of Mr. Graham, the rule nisi
was made absolute dissolving the marriage be-
tween the parties. — Mr. E. R. Syfret was
appointed reoeiver to effect a division of the joint
estate— coata te be paid out of the wife's share.
FORREST V. OHLBSON'S CAPE BREWERIES.
Mr. Schreiner and Mr. Graham appeared for the
applicant, and Sir T. Upington, Q.C., and Mr. Juta
for the respondent company.
This was an application for an interdict to re-
strain the respondent company from obstructing
or interfering with the continuous and uninter-
rupted flow of water from the Newlands Spring
over the company's property to the Liesbeek
River.
The Chief Justice said that from the affidavits
whioh he had read the applicant's mill appeared to
be worked more by steam than by water, fie was
of opinion that the matter could not be disposed
of on motion ; an interdict would not be granted,
the parties could bring an action, and if the appli-
cant had sustained any damage he could prove for
it. Costs to abide the event.
CAPE CENTRAL RAILWAYS (IK LIQUIDATION).
Company in liquidation — Sale of Company's
assets — Confirmation — Proceeds to be sub-
ject to order of Supreme Court.
Mr. Schreiner appeared for the liquidator
Sir T. Upington, Q.C., and Mr. Juta for Mr.
John Walker.
This was an application for the sanction of the
Court to the sale, by the reoeiver and liquidator
in England, of the property of the company, with
power to effect transfer and carry out oertain
agreements in connection therewith. It appeared
from the affidavit of the English liquidator that
the terms of purchase were £170,000, viz., £80,000
cash, £50,000 in preferent shares and £40,000 in
ordinary shares. No change would be made in the
terms of sale except that they would be a little
more favourable to the purchaser, and in considera-
tion of this the confirmation was postponed till the
28th May. The applicant further prayed that the
money should be deposited in the Bank of Eng-
land.
Mr. Juta read an affidavit sworn to by Mr. John
Walker, who objected to the confirmation of the
sale on the grounds that a better prioe could be
obtained, and that the property was at present
under offer to the Colonial Government.
Sir T. Upington, Q.C., for Mr. Walker, con-
tended that the sale should not be confirmed, or
that if it were, the money should not be deposited
in the Bank of England, but in the Standard
Bank.
The Chief Justice, in delivering judgment, said
that the last time the matter was before the
Court there were two circumstances whioh pre-
vented the Court from granting the confirmation
asked for. The first was that it was not by any
means clear that a better offer could not be
obtained. Plenty of time had been given Mr.
Walker to produce a purohaser willing to pay a
larger sum, but he had failed to do so. The
second circumstanoe was that it had not been
shown to the Court that if the sale were sanctioned
it would retain control over the assets in the
event of Mr. Walker's being able to prove that
he had a preferent claim. These difficulties had,
however, now been removed by the action of the
English liquidator, in expressing his willingness
that the money should be lodged in the Bank of
England, in the joint names of himself and the
Cape liquidator, to abide any further orders of the
Supreme Court. The Court would therefore
grant the application as prayed for, the money to
be paid into the Bank of England, subject, how-
ever, to any further orders of this Court. The
oosts to be paid out of the assets of the company ;
Mr. Walker, however, to pay the oosts of to-day.
CLAREMOXT, RONDEBOSCH, AND MOWBRAY
MUNICIPALITIES V. OHLSBON'B CAPS
BREWERIES.
Interdict— NuiBance— Brewery Refuse.
Mr. Searle, on behalf of the Municipalities,
applied for an interdict restraining the respondent
company from discharging refuse matter from the
Anneberg Brewery into the Liesbeek River, or
into a certain open drain leading to the said river.
Mr. Searle, in applying for the interdict, dwelt at
great length on the danger to publio health result-
ing from the discharge of the refuse and the
pollution of the Liesbeek.
Sir T. Upington, Q.C., with whom was Mr*
Juta, whilst admitting that the refuse from the
brewery had a most offensive odour, assured the
84
Court that the respondent company had done
everything that modern science could suggest to
abate the nuisance. Fresh experiments were now
being tried, and it was confidently hoped that some
substance weald be discovered which would
neutralise the offensive character of the refuse.
The place that was most complained of was the
bridge, and if the Municipality would give the
respondent company permission they would lay
down pipes at this particular place, and through
them carry the refuse to the river.
The Chief Justice said the matter had better
stand over till the August term. If by that time
the nuisance had not been removed the Municipali-
ties could bring their action, but if in the mean-
time the nuisance continued to be so great as had
been described in some of the affidavits a fresh
application could be made to the Court.
ttir T. Upington assured the Court that every
possible measure would be taken to remove the
cause of complaint.
PETITION OF THE STANDARD BANK.
Mr. Searle moved for leave to attach a certain
piece of ground known as High Constantia ad
fundandam juris diet ionem of this Court in an action
for debt to be instituted against one David J.
Pullinger, a resident at Johannesburg.
Property ordered to be attached, and leave given
to sue by edictal citation.
THE CAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION).
On the application of Mr. Schreiner, the rule
nisi was made absolute cancelling three mortgage
bonds passed by Charles B. Nicholls and his wife
before the Registrar of Deeds in King William's
Town in favour of the said bank.
THE CAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION).
On the motion of Mr. Juta, permission was
given to the liquidators to close the bank's premises
at Bast London and other places, and to destroy or
otherwise dispose of the books and other docu-
ments of the bank relating to transactions prior
to the year 1883.
THE PETITION OF DAVID H. OLIYIEB AND
OTHERS.
On the application of Mr. Searle, the rule nisi
was made absolute for the correction of a certain
deed of transfer relating to the place Heimen's
River, situated in the district of Oudtshoorn.
WE8THUYBEN V. HEYN8 AND OTHERS.
Mr. Tredgold applied to have the award of the
arbitrators between the parties concerning the divi-
sion of the water of the farm Keudouw made a
rule of Court.
Mr. MoLachlan consented, and the application
was granted.
THE PETITION OF GEOROINA GLADSTONE.
On the motion of Mr. McLachlan, leave was
given the petitioner to sue by edictal citation
in an action against her husband for restitution of
conjugal rights, failing which for divorce
SUPREME COURT.
TUESDAY, APRIL 14.
[Before the Chief Justioe (Sir J.H. DE VlLLIBRS)
and the following special jury: Messrs. H.
Boaloh (foreman), R. Maxwell, B. Phillips,
J. R. Ross, H. D. de Koch, W. McKenzie, J.
A. Neethling, J. C O' Riley, and H. Hall.]
WALKER V. THE GAPE CENTRAL RAILWAYS
COMPANY, LIMITED, (SIR T. C. SCANLEN,
OFFICIAL LIQUIDATOR.)
Declaration of rights — Private Railway Com-
pany in liquidation — Director — Agent —
Contractor — Lien — Shares — Debentures
— Preference — Registration — Accounts —
Damages — Costs — Remuneration of Jury.
In this case (Sir T. Upington, Q.C., with Mr.
Juta, appeared for the plaintiff, Mr. John Walker ;
and Mr. Schreiner and Mr. T. L. Graham for the
defendants, the Cape Central Railways Company,
whose official liquidator in the Colony is Sir T. C.
Soanlen, M.L.A.
Sir Thomas Upington said, in opening the
oase, that the plaintiff in this actien was Mr.
John Walker, who was resident at Mow-
bray within this colony, and the defendant Sir
T. C. Scanlen, who was a mere formal party,
being sued simply in his capacity as official
liquidator of the Cape Central Railways (Lim-
ited), an English company, which, as he
should point out, was established in England for
the construction of the Cape Central Railways*
The case originated in this way. In the year 1883
a Bill was passed by the Legislature of the Colony
authorising the Cape Central Railways Company
to eonstruct a line of railway from Worcester to
Robertson. Subsequently the powers were ex-
r *
86
tended for the further construction of the line from
Robertson to Ashton, on the way to Swellendam.
In obtaining the passage of the Bill and in con-
ducting the affairs of the company Mr. Walker was
the moving figure. He was in this colony and did
the whole work in connection with the passing of
the measure. The Bill passed, and it became in-
cumbent upon the company under its provisions to
make a commencement of the works on or before
the 27th September, 1884. It appeared that the
gentlemen who represented this company in London
were not in a position — (the members of the jury
would remember that at that time the financial
affairs of the Colony were not in a very good state)
— to procure the necessary funds to carry on the
works. If on or before September 27, 1884, they
had not made a commencement their powers would
have lapsed, and accordingly they adopted the
judioious course of getting a few miles of the rail-
way constructed for the purpose of retaining the
powers under the Act. Subsequently it was
discovered that these gentlemen were not
in a position to finance the affair, and
towards the end of 1884 the works were
stopped fer want of funds. Then came a com-
plication. A dispute arose between Mr. Walker,
who was the original agent in the Colony for the
oompany, and the company themselves, as to some
of the modes of preoedure which they were
adopting with regard to the issue of founders'
shares, to which Mr. Walker objected. The
company, however, went on its way, with the
result that in February of 1886 the company
dispensed with the services ef Mr. Walker. They
did not seem to better their position by that, how-
ever ; in fact, they went from bad to worse, and by
a minute of the directors, dated December 9, 1886,
the resolution dispensing with the services of Mr.
Walker was rescinded, the company taking him
back, and depending upon him for the purpose of
carrying the scheme through. After this, the
aooounts of the oompany were looked into, and it
was found that they were hopelessly insolvent, the
result being that Mr. Walker was obliged to oqme
forward with a sum of £6,000, which his friends
supplied him with, for the purpose of paying
off the pressing liabilities of the company.
Mr. Walker then entered into a oontraot with the
oompany on the 29th December, 1886. After ex-
plaining the oontraot in detail at great length,
counsel went on to say that the quantities priced
eut were £213,000, but Walker was to receive
£266,000 fer doing the whole of the work. He was
to receive £126,000 in shares or debentures of the
oompany, bearing interest at the rate of £6 pet
cent, per annum, £76,C00 in cash, being the amount
of the subsidy given by the Cape Government to
the oompany, and £66,000 in preference shares of
the oompany. The directors of the oompany, who
were really the parties now interested in the action,
were gentlemen placed upon the Board for the pur-
pose of financing this business. They might be
called the financiers, whilst Mr. Walker was the
contractor. Two of the original directors were
moved off the Board to allow three nominees of the
London financiers to come in, one of these being a
partner of Mr. Behr, the offioial liquidator of the
company in England, who was really
the moving party in the whole of this
suit. These directors were themselves per-
sons, in regard to at least three of them, who
were interested in the supply of material to this
line of railway, upon a contract which gave them
the very neat allowance of 12& per cent, com-
mission. The financiers were also to
receive 12$ per cent, for the money
they advanced. Such being the position of affairs,
these gentlemen, who were financiers and
merchants of the City of London, and no fools,
had accounts before them from time to time as to
what was going on in this country with regard to
the affairs of this contract. Various balance-sheets
were presented and passed, and finally an account
was framed in April, 1888, as between Mr.
Walker and the oompany, whereby it
was found there was due te Mr. Walker
£187,018. A meeting of the directors was held, an
account was presented, and the oompany admitted
its liability te Mr. Walker for £187,018. These
merchants now said they were foolish people who
did not know what they were doing when they
passed the account. They said they desired to re-
open the case, and that the account they passed
in 1888 was not true and correct. Accordingly,
in December of 1888, they passed a
resolution rescinding the passing of the account in
April previous without giving any notice to Mr.
Walker whatever, and it was now sought to strike
out oertain items in the account. These were the
salient points of the case. There were 47 issues
raised, but the practical points in dispute were
few and easily understood.
The Chief Justice said it was a pity the issues
had not been reduced. There were 67 at first,
but he had got them reduced to 47. Still it was
a farce to put 47 issues before the jury. It would
be utterly impossible for him to explain 47 issues
to the jury, for before he reached the twentieth
they would have forgotten the first.
Mr. Sohreiner : It's not our fault. I don't know
what the issues are now.
Sir Thomas Upington: I don't think you do*
Proceeding, counsel said that the plaintiff made
another claim for damages sustained by the oourse
the company had taken with regard to him.
Instead of getting 8,000 fully-paid-up shares as he
was promised, the unfortunate Walker was placed
on the list of contributories to the oompany in the
sum ef £38,060 for shares.
Mr. Boaloh (foreman of the jury) said that the
87
were very mystifying to the jurors. Could
there not be tome redaction ?
Mr. John Roes, another juryman! laid that it
would take an accountant six months to go through
all the accounts.
The Chief Justice said that the jury would hare
to do their best and take the papers to their room,
and consult as to the verdict. The case was not a
proper one to come before a jury at all, and it
was a pity the issues had not been reduoed.
Mr. Schreiner said that the defendant did not
demand a jury.
The Chief Justice said that if counsel had put
their heads together he thought the issues could
hare been simplified.
Sir T. Upington : The issues were submitted by
the other side.
The plaintiff, Mr. John Walker, then went into
the box, and was examined at great length by Sir
T. Upington. He went into the accounts in detail,
sad corroborated the opening statement of oounsel.
After the adjournment for luncheon,
The Chief Justice inquired if Mr. Walker was
the only creditor of the company ?
Mr. Schreiner said that there was a claim by the
debenture-holders, but except for that the out-
standing debts were of no great importance.
The Chief Justice asked if anything had been
done in the direction of reducing the issues raised ?
Sir T. Upington said he was sorry to say that
his learned friend had dene nothing except agree
to the abandonment of one issue.
The Chief Justice remarked that he should
have thought, if oounsel had sat down for
half an hoar and gone over the matter, they could
have greatly reduoed the number of Irenes. The
Chief Justice then went through the issues one by
one, and, by consent of oounsel, nine of the issues
were struck out of the pleadings. His Lordship
remarked that the object of issues was to simplify
the. pleadings, bat in the present case the issues
had the effect of rendering the case more and mere
complicated.
Mr. Walker's examination in chief was then pro-
ceeded with by Sir Thomas Upington. The cross-
examination by Mr. Schreiner was in progress when
The Court adjourned till Wednesday.
SUPREME COURT.
WEDNESDAY, APRIL 15.
(IN CHAMBERS).
Before Mr. Justice BUCHANAN.]
On the motion of Mr. Searle, Mr. William V.
Morkel was admitted to practise as an attorney
•ad notary public
[Before the Chief Justice (Sir J. H. DB VlLLIBRfl)
and a speoial jury.]
WALKEft V. CAPE CENTRAL RAILWAYS— (SIR
T. C. 8CANLEN, OFFICIAL LIQUIDATOR.)
The hearing of this case was resumed. The
plaintiff was again represented by Sir T. Upington,
Q.C., and Mr. Juta, and the defendant by Mr.
Schreiner and Mr. T. L. Graham.
The cross-exami nation of the plaintiff (Mr. John
Walker) was continued by Mr. Schreiner. Witness
said that to a certain extent the contract was
speculative, and he was allowed a margin of profit
on that account Before the contract was entered
into he did not undertake to settle with Firbank
A Co for £4,000. He had read the evidence of
Mr. Cooper on that point. The extra 2} per cent,
in the contract was put there because he had to
make a large payment to Belf out of his own
pocket, and not in order that he should pay Fir-
bank. It was utterly untrue that he had agreed
to pay out Firbank A Co. He was liable under
Schedule B, for engineering expenses, £7,500 ; he
did not see that Cooper's debentures were debited
to that account with £7,500. Cooper was paid
partly in cash and partly in debentures.
He got £8,000 in debentures at one time, and
£1,200 at another time. Witness did not issue
these debentures to Cooper, and the £4,200 was
really owing to him by the company. The
accounts were made out from information supplied
by the oompany itself. The oompany had put the
item in the books, and it was responsible, not Mr.
John Walker. He did not admit having over-
charged £4,200, but he agreed that the debentures
issued to Cooper were part of the issue of £125,000.
He had not charged the £4,200 twice over. The
debentures issued to Cooper were part ef the
£125,000, as he said, but they were not issued to
witness. He must have paid the £4,200, because
it figured is the company's books. He must have
provided the £4,200, but he could not say to whom
it went.
The Chief Justice : Then you say he has charged
the item ot £4,200 twice over ?
Mr. Sohreiner : Exactly so, my lord, from his
evidence to day.
The Chief Justice : How can it be said that you
paid this £4,200, Mr. Walker, if the oompany
paid it ? You charged the oompany with over
£7,000 for engineering fees, and it is for you to
show how you paid it. If the oompany paid
£4,200 of this £7,000 how can you oharge for the
full £7,000?
88
Mr. Walker: Your lordship will loek at it in
your own way.
In farther cross-exam ination by Mr. Sehreiner,
the witness said he had no agreement with Fir-
bank except to bny back his debentures. When
he went Home in 1887 Mr. Cooper had got a
garnishee order for £1,600, and Mr. Cooper would
not take the money in debentures unless witness
would undertake to redeem them immediately.
Firbank's agreement was with the company, but
of the £6,000 witness provided in the early days of
the company £1,600 went to Firbank, that was
clear. He positively asserted that the only agree-
ment he had with Firbank was dated December
1886, under which he undertook to purchase Fir-
bank's debentures. The company knew nothing
about his agreement with Firbank. It was true
that it was referred to in two minutes, but at a
meeting at which the company's solicitor was
present the words " Walker's agreement with Fir-
bank" was crossed out and " company's agree-
ment" inserted in place. This took place January
19, 1887. He did not admit that this referred to a
separate agreement between the company and
Firbank. Under two orders of the English Court
£2,600 debentures were issued. In the terms of
the oontraot he took £1,600 in debentures from
Cooper and gave him cash in order to save the
company from being wound up. The garnishee
order which Cooper had was fer £1,600 in cash,
and he would have wound up the company
if witness had not paid the £1,600. He oould
not say that the action by Cooper was
against the company. He could not have pro-
ceeded with the contract at all without
assistance. The railway was a venture like, most
things is this woild. It was not risky but a
perfectly safe investment, and he claimed that
events proved it. The syndicate were likely to
get their money back twice over even if he won
this case. He did not say that the obligations to
debenture-holders would be satisfied. That would
depend upon his (Mr. Schreiner's) ooBts and
others His case was that the financiers
would get their money back again and good sub-
stantial interest He oould have easily got other
help for the project than that which he did get.
The financiers had insisted upon taking £76,000 for
a debt of £60,000, although the £60,000 included a
handsome profit. These gentlemen as the directors
had appropriated £76,000 worth of debentures for
£60,000 of debt, and that was what he complained
of. The £76,000 from the Cape Government passed
into the hands of trustees for payments from time
to time as the work progressed. After he had
entered into the oontraot he returned to the Cape,
having made financial arrangements. Two miles
of the workfof Firbank had to be done all over again.
Work to the value of £8,000 was credited to Fir-
bank. When he was in London he saw that there
was some " hanky-panky " about it, and it
agreed that the work should be remeasured.
Mr. Sehreiner : You are familiar with that sort
of thing ?
Mr. Walker : No, but I saw there was something
wrong. Witness went on to state, in continued
oross-examination, that £8,860 was set down for
Firbank's account. Firbank had done certain
work, which witness advanced the money to pay
for, he receiving in return, from the company, £100
of debentures for every £60 he paid to Firbank.
The payment to Firbank was not allowed in
Cooper's final certificate of £209,000, although
Cooper had said that it was. Cooper made out
two certificates, both of whioh were faulty in this
particular. The £8,860 figured in the company's
books several times, both to witness's debit and
credit. Fairbanks total excavation was only
13,000 oubic yards. His oase was that until the
final accounts whioh the directors first passed,
the item of £8,860 was never fairly credited to
him. He utterly denied that the item was put in
twice over. Under Schedule A he was entitled to
claim for steam freight.
Sir T. Upington : This is no part of the issues
raised.
The Chief Justice : If it is not contained in the
issues I certainly rule that it cannot be put.
Mr. Sehreiner said that the witness had raised
several issues of credit between himself and Mr.
Cooper, and the point was important Would the
Court allow an amendment of the pleadings ?
The Chief Justice : Certainly not.
Cross-examination continued : Mr. Harris was
a chartered accountant, and witness gave him
certain information regarding the accounts. The
direct information was given by the chairman, Mr.
Hazlehurst.
Mr. Sehreiner : Mr. Haslehurst was not called
in England ?
Witness : No, you said you would call him, but
you did net dare do it
The Chief Justice : Mr. Walker, you must
answer the questions put to you,
Mr. Sehreiner : Would Mr. Haslehurst join
with yen in the new scheme you got up ?
Witness : Nu, he was a shipbroker.
Mr. Sehreiner : Well, the other gentlemen
were not railway contractors, Mr. Walker. Now
was not the company really Walker ?
Witness : No, they turned me out of the meet-
ings when they discussed the accounts.
Mr. Sehreiner : But you had really carte blanche
with regard to the work, and the company was
practically Walker?
Witness: Certainly not, sir. Continuing, he
said that the resolution rescinding the payment
of his aooount was passed upon Cooper's recom-
mendation. Mr. Cooper's final certificate was
made out upon the basis of the very accounts wit-
89
nest now sued the company upon. There was a
conflict of testimony on that point between Cooper
and hinueif. Witness's accounts were submitted
to the company at a general meeting of the
shareholders, and they were passed in their pre-
sent form, shewing a balance of £187,018 due to
him. That was in April of 1888, at a general
meeting immediately after a meeting of directors.
Shortly afterwards witness left for the Gape,
where he was gazetted as the representative of the
company. His accounts were passed, and his posi-
tion as contractor ceased. Then he was appointed
a special director to go to the Cape to try and sell
the line to the Cape Government. There was no
special mission. He was coming home to the Cape,
and agreed to try and sell the line, which was then
hardly finished. On April 20, 1888, witness sent a
letter to the company, suggesting the closing of
his contract from the end of the previous year.
Five days later he received a note saying that his
accounts were passed, that the directors agreed
that his contract should cease from 81st December,
1887, and that he was to proceed to the Cape as
director to sell the line. At the same time, he had
to finish the stations and outbuildings, in his
capacity as contractor.
The Chief Justice : How could he fill these two
capacities? Continuing, his lordship said that
the really important point seemed to be whether
or not the plaintiff had a lien on the company's
property after the sale had been authorised to the
Cape Government. It was questionable whether
he could come in as a preferent or concurrent
creditor. There was £80,000 to be distributed in
cash, looking at the cash alone as an asset, and if
this was to be distributed to the debenture-holders,
a few thousands more or less to Mr. Walker did
not seem to make much difference. What was the
total amount of debentures ?
Mr. Schreiner: The total issue of debentures
was £125,000.
The Chief Justice : If the £80,000 were dis-
tributed, I expect there would be a pro rata
distribution.
Mr. Schreiner : One of Mr. Walker's claims is
for £83.000 for damages.
The Chief Justice : The letter seems to show
that Mr. Walker gave up the line as contractor
and took it over as agent. Where then is the lien ?
Is that one of the issues for the jury ?
Mr. Schreiner: No, my lord. *
The Chief Justice : But there is one issue as to
whether he did or not actually give up the line.
Mr. Hchreiner : That is so.
The Chief Justice : This letter shows that Mr.
Walker was anxious to get rid of his dual capacity.
He wished to be agent alone.
Sir T. Upington said that the company was
asked to take the line over subsequently, but
refused. As a matter of fact, Mr. Walker after
V
his return to the Capo continued to do the work
of a contractor, only that he had no profit. The
company did not take over the line when it was
tendered to them.
Mr. Schreiner : My friend refers to the fina
completion of the line.
Witness then stated, in further cross-examina-
tion, that he collected the revenue of the line,
putting in accounts from time to time. Those
accounts explained his payments of interest at
intervals. He provided cash to pay off the deben-
tures as they were presented. He did not call
that providing an account, but it was paying cash,
which was very much better. He paid the deben-
ture-holders all their interest to August 1, 1888.
The traffic receipts did not furnish all the money,
but he paid the rest out of his own pocket. He
was aware that in England there had been filed
olaims amounting to £18,000 for interest, but he
did not admit the genuineness ot those olaims. He
had only had issued £111,000 debentures, and had
not made the admission that he had received
£118,000. He stated on his declaration that he
had received £79,660 debentures, but that was a
mistake, as only £72,000 were issued altogether.
He had given the company credit for more than it
had issued. He believed that the whole £126,000 de-
bentures had been issued, but not to him. Of the
debentures £6,860 were exchanged for old deben-
tures, £4,000 went to Pirbank, £4,000 to Cooper,
£1 ,600 to Harris, and possibly one or two more.
These were not issued for his account or benefit.
The £6,360 debentures were issued for the benefit of
Slade and others. They were issued prior to his con-
tract. He never engaged Mr. Harris, the accountant,
and never agreed to pay him, and neverdid pay him.
He was paid in cash and debentures, and witness
arranged the transaction, but only at the wish of
the company. If Harris said that he was engaged
and paid by witness, he was fabricating, though
witness did not like using such severe language.
It was a clear case of conflict of testimony between
Harris and himself. He had objected, in a letter
to Sir Thomas Soanlen, to the issue of some thou-
sands of debentures to various directors, on the
ground that those gentlemen had received the
shares fraudulently, and he still said that the issue
was fraudulent. His agent was party to the issue,
but he declined to admit that he (his agent) con*
suited him as to the details ©f the matter. He
had not followed Mr. Behr's evidenoe all through,
because Mr. Behr started from wrong premises
entirely. The company was bound to issue
£126,000 debentures to him, but it did not do it.
At the same time, it was net absolutely fixed that
he should be paid entirely in debentures. He
could receive part in cash.
After the adjournment for luncheon the cross-
examination was resumed. Witness said he had
gone into the books during luncheon time, and he
90
found that with regard to £1,260 for London office
expenses in his account, it was not made out by
him, but he provided the cash for it. Amongst
debentures issued in exchange for old debentures,
a number went to the directors in exchange for old
ones, but it was not true that the directors in the
first instance paid for the old debentures. His
contention was that the old debentures were issued
without the company receiving any consideration.
They were for directors' fees and other expenses
of that nature. He bad got 82,880 shares, but he
refused to give credit for them, because when
he received them he believed they were fully paid
up, whereas, as a matter of fact, nothing had
been paid upon them, and he had been placed on
the list ef contribute ries in regard to them. He
had received no fully-paid-up shares. He accepted
the 82,880 shares as fully paid up, firmly believing
that he was responsible for no payments upen
them. He was not the promoter of the company,
but merely the agent.
The Chief Justice said that as at present advised
he should direct the jury te find that the plaintiff
had accepted the 82,000 shares as fully paid up.
The liquidation proceedings altered the plaintiffs
position.
Sir T. Upington said that the company had con-
tracted to supply 32,330 fully-paid-up shares, and
had not done so ; therefore the company was liable
for the neglect.
The Chief Justice was of opinion that the
plaintiff had accepted the shares as fully paid up.
Witness stated that had he had the shares by
the time mentioned in the contract he could have
sold them easily ; in fact, he did sell a great
number. He blamed the company for wilful
delay in the delivery of the shares. He had dealt
in seme of the debentures, but the purchasers
clearly understood that the shares were nothing
more than acknowledgments of debt. He did not
think there had ever been a time when the share-
holders of the company could have received a
penny dividend upon net profits after the first
preferent charges had been borne. Ordinary
shares came after preferential, and at the time his
shares should have been issued it could not be said
but that there would be a good dividend upon even
the ordinary shares. He had not brought his claim
against the company in liquidation to any test in
England. He had offered to Sir T. Scanlen to sub-
mit his claims to arbitration. He had rendered a
former claim to Sir T. Scanlen, and very likely the
present claim might show an increase upon that.
The Chief Justice inquired if the company had
made a tender to the plaintiff ?
Sir T. Upington : None whatever, my lord
Mr. Sohreiner said that the company admitted
that 1,600 shares were due to the plaintiff.
The Chief Justice asked if there had been a
money tender ?
Mr. Schreiner said ne, the liquidator having been
unable to make any. The company desired to see
Mr. Walker's proofs.
Witness stated that one of his claims for
£10,000 for eccupatien of his private property had
been dropped before the commencement of the
present action. Mr. Ridings was sent out to the
Cape by the oompany, and although a syndicate of
London financiers said they would pay his
expenses they were debited as a fact to witness.
The company was unable to pay Ridings the £860
he claimed, and witness's friends paid him. He
now sought to recover that amount. His claim
was outside the contract altogether, but he paid it
to prevent the company becoming insolvent. It
was a case of Hobson's choice, and he paid the
money. Witness explained the appearanoe of a
claim by Messrs. Davis, solicitors, against the
company in his case, by the fact that he was asked
by the directors to pay the sum in question,
£162 10s. He could not find the exact
item of £162 10s. in the company's books,
but he deoidedly paid it on the company's
account. Witness paid a number of other
sums, particulars of which he entered into, on
behalf of the company, to save legal proceedings.
He was not aware that his claim as a director had
been filed with the official liquidator in England.
He was te receive £800 a year as agent. He had
to work the line, and claimed to have saved the
company several thousands of pounds during the
time he managed the concerns. He considered
that he was worth £800 a year as agent in addition
to £500 for special services as a director.
The Chief Justice said he considered that the
£800 a year salary in an important position like
that of agent was not excessive.
Mr. Schreiner said that under the articles of
association a director proceeding abroad could be
given a special reward, but only by resolution,
and in this case there had been no such resolution
passed or proposed.
Witness said that the item of £200 for office
expenses at the Cape was for the rent, Ac., of his
office. His office, he explained, was in his own
house, the best room, and he would be glad to show
it to Mr. Schreiner if that gentleman would call
upon him. He kept the room specially for the com-
pany's work, and charged at the same rate whioh
had been allowed previously for office expenses.
His olaim for £750 for travelling expenses was
chiefly for making two voyages to England and
back, both of whioh were undertaken, however,
after the liquidation. He-went at the request of
Mr. Behr. He charged £250 for expenses in the
Colony, for going up the line. On the first voyage
he had to take his sob, and on the second his wife
owing to his state of health. He got free passes
en the Cape Government Railways, but the Bail-
way Department did not feed him.
91
Mr. Schreiner : Then the £250 is for food?
Mr. Walker: For two and a half years.
Mr. Schreiner : Then there is £50 for law. Very
moderate.
Mr. Juta : Very moderate indeed, I think.
Mr. Schreiner said that the money was spent in
opposing the liquidation proceedings, and now Mr.
Walker asked that, when he had opposed the
liquidation, he should make the liquidators pay for
it.
Sir T. Upington said that a peculiar point would
arise on that. Mr. Behr said in his evidenoe that
he never authorised Sir T. Scanlen to apply for
liquidation in the Colony.
Mr. Schreiner : Then there is £150 for cable-
grams and petties — a pretty phrase.
Mr. Walker : £106 is for cablegrams, and the
rest for sundries.
Mr. Schreiner : Where are the particulars ?
Mr. Walker : I don't keep particulars of
ahOlingB spent on cabs, stamps, <feo.
Mr. Schreiner : But surely an agent at £800 a
year doesn't charge without giving particulars ?
Mr. Walker: Well, 1 generally find that in
lawyers' accounts there is a good deal for sundries
and petty cash.
Mr. Schreiner : To whom were you cabling ?
Mr. Walker : To the company ; the cables were
sent to Mr. Ashton, and by him to the company.
Mr. Schreiner : Where are the cable receipts ?
Mr. Walker : I have been in the Oolony ten
years, and I never got a cable receipt from the
postal authorities unless I asked for it.
Mr. Schreiner : In the first account you claimed
£600 for the use of tools. In the account after
liquidation that swells to £1,000. How do you
account for that ?
Mr. Walker : There is more time to be added,
for which I charged.
Mr. Schreiner : I propose to criticise the first
amount of £600, but how in the world it swelled
to £1,000 I can't imagine.
The Court at this stage adjourned till Thursday.
SUPREME COURT.
THURSDAY, APRIL 16.
[Before the Chief Justice (Sir J. H. DE
VlLLIERS) and a special jury.]
WALKER V. THE CAPE CENTRAL RAILWAYS—
(8IR T. C. SCANLEN, OFFICIAL LIQUIDATOR.)
The hearing of this case was resumed, Sir T.
Upington, Q.C., and Mr. Juta again representing
the plaintiff, and Mr. Schreiner and Mr. T. L.
Graham the defendant.
The plaintiff, Mr. John Walker, was further
cross-examined by Mr. Schreiner. He said that
his charge for the use of materials was from
January, 1888, to April, 1889. He charged £1,000
in the latest account, but £600 in the former
account, the increase of £400 being put in because
he found he had previously oharged the company
too little. It was not true that he had charged
this item in two places. The £1,000 was simply
for the use of tools belonging to him. None of the
maintenance tools were taken over under a
former account. He had no particulars to show
regarding the cost of these tools, but the sum he
oharged was below that usually made, and less
than that oharged on the Cape Government Bail-
ways. A list of the tools in use on the line was
in the papers before the Court. There was an
item of £800 paid to Cooper, but that
was not included in the engineering account.
It was net true that the company had only author-
ised one payment of £100 to Cooper, and he
considered the company responsible for the money
witness paid to Cooper, they having sent him out
to the Cape on a special engineering visit. He
had made an overcharge of £60 in putting down
this £860 paid to Cooper. As a matter of fact, he
had paid only £800. The oompany's books only
showed the payment of £60 to Cooper, but the
financiers paid four more sums of £60 each, and
he claimed that he had been wrongfully held liable
for the' whole sum of £800, although he had
nothing to do with sending Cooper to the Cape.
The books of the company debited witness with this
£800, but he could not identify the precise items.
If the present account was overthrown there were
several fresh items to go in, among them being
witness's cash advanoe of £6,000. He had given
oredit for the whole of the revenue account, and
he now claimed that back, having paid off the
interest on all the debentures. Part of the deben-
tures were paid here, and part in London, and the
company had the particulars in its own books. His
payments of interest amounted to £1,988 16s. 9d.,
but he claimed £1,600 for traffic receipts during
the time the line was open. There was a claim of
£18,000 by English debenture-holders for interest,
but he did not admit its genuineness. His case
was that the debentures upon which this £18,000
was claimed were never issued under the terms of
his contract. In December, 1877, £77,600 of
debentures were unissued, and they were not
allotted until August, 1888. If they had been
issued so far back as May, 1887, he would have
been liable for the interest. After the line was
opened to Ashton he ceased to be responsible for
interest. He had claimed £7,600 for interest at 6
per cent, upon £137,000, for eleven months, on the
balance of his account. His case was that the
directors should have kept to their word after
passing his accounts in April, 1889. He had no
92
claim for interest upon debentures issued j n
August, 1888, because he was net liable for any
such interest. There were two items of £594 and
£828, but there had been a mistake, £2*fi having
to be taken off the £694, though there were other
items he oould add, whieh would more than make
up the btlanoe. He was not aware that another
item of £14 12b 6d. had been oharged twiee over.
There was an item of £270 for construction pay-
sheet, which represented payments he had actually
made up to the end of December, 1887. but that
sum was not stated twice over. There was a
charge for £496 for the maintenance of the whole
line during the last three months of 1887, and the
item of £270 appeared to have been included in
the £823. He claimed £100 damages for the
detention of a steam pumping engine bv the liqui-
dator. He could have sold the engine, which was
four-horse-power, for £100, but the liquidator
would not deliver it up, and now he could not find
a purchaser. The engine was lying at Ashton
on ground plaintiff claimed as his. Whilst
witness was away Mr. Syfret detained
the engine but afterwards gave it no,
whereupon, however, the purchaser deolined to
have anything to do with it, finding there was a
dispute as to the title. The engine was set
down in the inventory with the rest of the
materials. He had rendered an account supported
by vouchers, but he did not deliver up the
vouchers, though they were th*re for 8ir T.
Scanlen. A certain number of articles were taken
over by Mr. Svfret, and witness received £400 for
them, though thev were afterwards valued at
sliarhtlv less. Witness had received an account of
£120 from Dr. Stevenson for medical attendance
to the men on the line. Of this witness had paid
£80 or so, the doctor refusing to take the cnm-
panv's undertaking for the money. The
stationmaster at Robertson had been instructed
to pay witness £18 10s. on account of the medical
man's bill, and he considered he had full right to
tell the stationma«ter to do this, even though it
was after liquidation in England.
Re-examined bv Sir T. TJpington : Witness said
that the item ef £1,646 for interest from the date
of the opening to R^bert^n was charged under
his contract. He was to take the traffic earnings,
£1,646, to represent the interest he had paid on
debentures. He said that the directors ought, to
have paid his account when it was passed, and he
claimed interest because they had not done so.
When the account was made up to the end of
1887, about £12,000 to £15,000 was all that was
necessary to finish the line. He was to have been
raid £137,000 in cash debentures and shares, and
he said that the company had given him 32,880
worthless shares, upon which he had been ordered
to pay £82,330 under the liquidation.
Th« Qhief Justice asked! if th.e English directors
had stated, in the oourse of their evidence, that
they were unaware that several items had been
erroneously entered by Mr. Walker in the
accounts ?
Mr. Schreiner : Certainly, my lord.
The Chief Justice : And did they revoke the
resolution passing the aocountB when the errors
were made known to them ?
Mr. Schreiner : At onoe, my lord.
The Chief Justice said it was a legal question if
the case oeuld be re-opened after the passing of
the accounts.
Mr. Schreiner said that it was a question of
mixed law and fact, and the Roman- Dutch law
permitted a re-opening of accounts under certain
circumstances.
Re-examination continued : Messrs. Fairbridge
& Arderne were at one time agents of the com-
pany in the Colony. The line had recently been
disposed of at a large profit. He accused the com-
pany of oreating fresh capital without authority.
Regarding the engine, it was claimed and inven-
toried by the official liquidator here, although he
had no title to it.
By the Court: He became contractor in 1886,
and at once commenced rendering monthly accounts
to the company. He did that the whole time until
he left the work in 1887. The first report was dated
9th March, 1886, and the last 28th September, 1887.
Mr. Schreiner : No accounts showing the posi-
tion were ever rendered at all. Merely sum-
maries, in the shape of letters.
By the Court : He had no specimens of the
monthly accounts in court, but would obtain some
without delay.
Sir T. TJpington : I undertake to produce those
accounts, my lord.
By the Court : The accounts witness sent
were all accepted by the company, and any errors
that crept in were rectified
Mr. Schreiner did not think that accepted was a
good word, but he admitted they were received.
The Chief Justice : The question of fact is, did
the company accept Walker's account ?
Mr. Schreiner : In the sense that they would
inquire into it, but no further, my lord.
The Chief Justice : Mr. Walker, can you pro-
duce one letter in which the company acknow-
ledges the receipt of one of these accounts ?
Witness : There is a bundle of them, my lord.
The defendants have got the originals, and we
cited them to produce them, but they have not
done so. Continuing, witness read two letters of
acknowledgment from the company, of his
accounts. In one the company took objection to
an item of £500, which was rectified in the succeed-
ing account.
The Chief Justice said that, in his opinion, the
company had accepted the accounts in every sense
of the term*
93
By the Court : Payments were made by the
company en the basis of the schedules A and B,
under the contract. Whenever objections were
made, they were rectified without delay. The
shareholders in full general meeting passed the
accounts at £137,000, the directors having just pre-
viously also passed them. The letter under which
the contract ceased on December 31, 1887, was
without prejudice to his rights as contractor for
payment of the amount due to him, in spite of
the statement it contained, that his dual capacity
as contractor and agent should be deemed to have
ceased on December 31, 1887.
This concluded Mr. Walker's examination.
Sir T. Upington said he should have to argue
that the parties as a matter of fact did not agree
to terminate the contrast on December 31, 1887,
and could not have done so, because en that date the
contract was not finished.
The Chief Justice said that the letters certainly
agreed to a termination of the contract.
Sir T. Upington said he should have to argue
that that was not so, and that the plaintiff con-
tinued in possession of the line. Taking the faots,
it could not be said that there was a mutual agree-
ment to terminate the contract.
Mr. Patrick Cameron Grant, an accountant,
said he had examined the books and balance-
sheets of the company, at plaintiffs request. The
books were opened in 1886. He compared the
balance-sheet put in for 1885 with the entries in
the books, and found that it tallied. The balance-
sheet for 1886 also tallied with the books. On the
31st December, 1885, the liabilities of the compaay
were £8,268 9s. Id., including £5.o00 advanced by
Walker. Up te the end of 1885 £640 had been
paid for shares issued. According to the balance-
sheet for 1887, Mr. Walker was entitled
to £137,025, the difference of £12 being explained
by a minute. The first balance-sheet, which did
not tally with the books, was signed by Harris, the
accountant. That was not a true statement in
accordance with the bookB. He examined a
balance-sheet framed by Walker up to the end of
1887 and that was correct, in accordance with the
books, in all details. The items of £694 and £823
appeared in the cash-book of the company. He
had examined the traffic accounts of the line and
the different items were vouched, the balance
found due being £823 16s. 6d. The amount passed
to Walker in the company's books, up to the end
of December, 1887, was £211,566. By the
company's ledger of shares 868 shares
had been issued to Walker, but the general
ledger showed £32,300. The 368 shares were
traceable in the share-ledger; 330 were trans-
ferred to another person. In December, 1886,
£6,360 of debentures had been issued, £1,660
having gone te Walker. Since that date, and up
to December, 1887, £24,700 of debentures were
issued, of which Walker got £12,950, including the
£1,650 of the old issue, these being exchanged for
new ones. Then there were £95,000 issued in
trust, £25,000 to Fairbridge & Arderne on trust,
and £70,000 to certain trustees in London. Of the
£26,000 issued to Fairbridge & Arderne Walker
got £17,500, and the rest were returned te London
to the trustees there. The total value issued to
Walker to the end of 1887 was £111,200. The
debentures sent to Fairbridge 6 Arderne were in
trust for Walker. The books did not show when
Walker got the remaining £75,500. He could find
no payment made to Cooper, for a visit to the Cape,
in the books of the company. There was no trace
in the books of a medical account for the servants
of the company on the line. He practised as a
sharebroker, bur. not until 1889. He had no know-
ledge of the value of the company's shares from
his own experience.
Cross-examined by Mr. Schreiner : The share-
ledger showed the issue of shares te Ashton, Reid,
MoKinley, and other directors. He had Been
vouchers for every payment made in the books.
As an auditor he would accept an endorsed cheque
as a sufficient vouoher for the due payment of an
account. He was mistaken in stating that the
books showed no payment to Cooper, £100 having
as a fact been paid him.
SUPREME COURT.
MONDAY, APRIL 20.
WALKER V. CAPE CENTRAL RAILWAYS— (8IE
T. O. SCANLEN, OFFICIAL LIQUIDATOR.)
The hearing of this case was resumed. The
plaintiff was again represented by Sir T. Upington,
Q.C., and Mr. Juta ; and the defendant by Mr.
Schreiner and Mr. T. L. Graham.
Sir T. Upington having put in a number of
formal documents, the plaintiff's case was closed,
and Mr. Schreiner called Sir Thomas Charles
Scanlen, M.L.A., the official liquidator of the
company in the Colony, and the defendant in the
aotion. In 1890 Mr. Walker sent in a claim, to
which witne-s xeplied, and the affidavits supporting
plaintiff's olaim were filed in September, 1890. He
knew nothing about the accounts here, all the
books being in London. The plaintiff had
furnished witness with no vouchers, but had said he
could see vouchers at his attorney's office. He had
gone through Mr. Walker's account, marked " C,"
item by item. The first item was £ 1 37,01 8 17s. 2d.,
representing the balance said by Mr. Walker to be
due to him. Witness had prepared an account
showing his view of how that £187,018 ought to be
u
dealt with. Dealing first with the oontraot account,
it started with the oredit for the whole of the work
certified by Mr. Cooper, £209,887 8s., for every bit
of werk done. That showed a total balance due to
Mr. Walker of £233,926 13s. 2d. Then he debited
Walker with the amount of the subsidy from the
Gape Government £76,000, debentures £126,000,
and shares £82,300. There was left due to the
plaintiff a balance of £1,626 Ids. 2d., payable in
shares. This excluded the two disputed items of
£3,360 and £ 16,000. Of the debentures, there were
first issued 10,800 to Walker, then 22,400 also to
Walker, then 77,600 which passed to the trustees
appointed to receive them for the purposes of the
company. Mr. Walker said that another 2,160
were in addition issued to the trustees, but that
was not se ; the 2,160 were 48 debentures of £60
each, and he held Walker's receipt for them. The
further issue of debentures, to persons already
named to the Court, brought the total to 126,000.
Of the debentures for £160, issued to Harris, it was
proved by the books that they were issued on account
of Walker, and the same was true of those issued
to Johnson The issue of debentures to Harris
was credited to Walker, under the head of
sundries, for which a charge of £3,000 odd was
made, and the issue to Johnson was comprised in
the item for printing and stationery. He knew
nothing of the arrangement with Firbank & Co. in
England, but he found that 4,000 debentures were
issued to them. From correspondence whioh
passed between Tomlin, the secretary of the com-
pany, and Walker, it seemed that the debentures
to Firbank were issued on account of Walker.
There was an account in the ledger for engineering
fees. In that aocount there was an item of £600
brought into the total of £7,000 odd, and from the
evidence of Cooper it appeared that this £600 was
paid to Walker in debentures. The engineering
aocount gave Mr. Walker credit for all the deben-
tures issued to Cooper. In one aocount plaintiff
debited the company with £2,700, directors' fees,
£2,000 of this being for money paid prior to his
contract From the books he clearly traced the
issue to Mr. Walker of the £6,860 old debentures
whioh that gentleman denied were issued on his
account. He traced every debentnre of the 126,000
to be issued either to Walker or on his account.
With respect to the item of interest, £1,646, no
voucher had been given for it, and he could not trace
it in the books. Mr. Walker said that the sum was
for surplus over traffic earnings, but if so, then the
salary due to Walker for the period covered must
be deducted, if any suoh salary were due to him.
He had never had a vouched account from Walker
of his dealings with the company's
property after he took it over, and it
was impossible for witness, as matters stood,
to verify the accounts of Walker. On the contract
aocount whatever was due was payable in shares.
The 77,600 debentures to trustees were issued at
various times, as the certificates were framed, but
all by August, 1887. In August, 1888, there ap-
peared to have been an adjustment. As the works
were from time to time certified, debentures were
issned by the company to the members of the
syndicate. In England £18,000 for interest was
claimed upon these very debentures which Mr.
Walker claimed interest upen here. There was an
item of £270 Is. for construction pay-sheet, for
which he had no vouchers, and that appeared to
have been twice charged if it referred to work
done during the previous month. An item of
£162, due to Davis A Sons, could not be traced in
the books as due for any work done for the benefit
of the company, and he had seen acceptances for
this sum, signed by Walker in Davis 4 Sons'
favour. A sum of £39 Is ., due to Fairbridge &
Arderne for law costs, seemed to be charged in
two places, the same remark applying to a pay-
ment of £18 to Jansen, Cobb & Co. An aocount
of one Bayliff, £40 14s. 10d., was also brought up
as a second charge after being put in a former
account. With regard to Riding's acoount of
£1,100, he could not find that it was authorised by
the company. Of Cooper's acoount, £400
was transferred to the item for engineering
expenses. All that the company authorised for
Cooper's expenses was a sum of £100 and
a draft for £120 for personal expenses.
Mr. Walker had claimed £126 for directors' fees.
As to travelling expenses, he had never, as liquida-
tor, authorised Mr. Walker to spend money in
travelling on behalf of the company after the
liquidation. £1,000 was charged for the use of
tools and maintenance, but witness had no vouchers
at all for it, and it was originally set down by
plaintiff at £600, afterwards being swelled to
£1,000. As a fact, Mr. Walker was only on the
share register for seven ordinary shares, he having
transferred the others he had received. Mr.
Walker's rights for the debentures he held had
never been disputed. Plaintiff had charged £2,060
for twenty-one debentures, instead of £1,060, but
whatever debentures plaintiff produced he would
be ranked fer. At the time of the
liquidation of the company in Eng-
land witness was in possession of the
line under Mr. Walker's power of attorney, so that
really he had held possession ever since plaintiff
went away to England, first as holding Walker's
power, and then as official liquidator. Plaintiff
gave up the line under protest, however. He could
not at present arrive at the true balance due to
plaintiff, including interest, because hitherto wit
ness had received no true and proper account of
the interest due to plaintiff, if any. The interest
aocount must be taken independently of the con-
tract account. Under the contract interest was
payable by plaintift up to the 80th September,
9A
1887, and he reqnired an account from Walker
•bowing what he had paid. The company was
never registered in the Colony as a limited
liability company. Witness contended that plain-
tiff was bound to render proper accounts, in his
capacity as special director or agent of the com-
pany. Witness was not bound to examine the
mass of accounts in possession of the plaintiff's
attorney.
Cross-examined by Sir T. Upington : What
witness called the contract account was upon the
contract between the plaintiff and the company
from witness's point of view. There was a differ-
ence of 6,600 between the debentures plaintiff
admitted receiving and the number witness said
were issued to him. On Deeember 81, 1887, the
debentures were all out, except 77,500 to the
trustees, and 2,160 issued to Walker subsequently.
With those exceptions, Walker bad the whole
issue, 46,860, which would include the old
debentures. He was not aware that Relf had
received ten bonds of £100 each. The claim for
£18,000 interest by English debenture-holden
had not yet reached witness, but when it did he
should deal with it. Witness had not wiped that
claim out in any of his reports as liquidator. On
the whole, the conclusion he arrived at was that
on the contract there was only due to Walker
£1,626. The £6,000 paid by Walker in the first
instance was a little difficult to follow, but he
appeared to have got back at onoe £1,067. In
Cooper's certificate he could not separate this
£6,000, but he believed it was included in it. In
the contract itself nothing was included to the
effect that Walker had to pay off the £6,860 old
debentures. The entries in the books were some
of them in Harris's writing, some in Tomlin's,
and some in another hand. Harris was appointed
by the company, but paid by Walker, as witness
contended.
The Chief Justice : This seems to be the most
extraordinary company I ever heard of. The com-
pany employ Harris to make an audit, and Walker
pays. Harris is desirous to get certain informa-
tion, and goes to Walker for it, and then he makes
up the accounts.
Sir T. Upington : When your lordship hears the
evidence ef the directors it will throw a wholly
different light upon the transaction.
The Chief Justice : Ton said that there was due
to the plaintiff on the contract account £1,626 Is
that the only amount due, or is there something
due on any other account ?
Sir T. Soanlen : There is nothing else due, ex-
cept anything that may be awarded him as agent.
Upon the question of interest the balance may be
either in his favour or in favour of the company.
I cannot say whioh at the present moment, my
lord, because we have never had a proper account
rendered by the) plaintiff.
The Chief Justice : But before any oontract was
entered into he paid £5,000 ?
Sir T. Scanlen : No ; it was simultaneous, I
think.
The Chief Justice : But was it a bonus to the
company ?
Sir T. Scanlen : No, it was in part fulfilment of
the obligation he undertook by the contract.
There is no section of the contract which shows
the £5,000 separately. It appears to be paid
generally, under the fourth section
The Chief Justice : But unless the balance of
£24,000 includes the £5,000, is not Mr. Walker
in all fairness entitled to this £6,000 ?
Sir T. Scanlen : I should be able to show your
lordship that some of the items included in
sundries, Cape agency, Ac, included portion of
this payment of £6,000. For instance, there was
£1,600 to Relf, which is also put under the head
of Act of Parliament. This £5,000 was given for
the purpose of discharging liabilities enumerated
in the contract.
The Chief Justice : Do you object to his charg-
ing £800 a year for his services ?
Sir T. Scanlen : No. I think it is rather high,
as your lordship only allowed me £300 a year for
managing the line.
The Chief Justice : Yes, but he would have
more work to do. Tou object to the payment of
£500 to Walker as a special director ?
Sir T. Scanlen : Yes.
The Chief Justice : What was the capital of
this company ?
Sir T. Scanlen : I believe a million.
The Chief Justice : And how many shares were
issued ?
Sir T Scanlen : 646. Mr. Walker was the only
one who got shares with the exception of the
directors, who got them from Walker.
The Chief Justice : I should like you to make
an account tracing this £5,000.
Sir T. Scanlen : I will try, my lord.
Mr. Arthur George Syfret, solicitor, and
partner in the firm of Scanlen 6 Syfret, gave
evidence that Sir Thomas Soanlen was appointed
official liquidator on July 18, 1889. After the
company was placed under liquidation in London
Mr. Walker and his claim were under discussion.
As the result of a communication witness sent him
in April, 1889, Walker went te London to try to
bring about an amicable settlement of the case.
He had frequent personal dealings with Mr.
Walker, and the latter at no time olaimed that his
travelling expenses after the liquidation would
have to be paid by the liquidator. As a fact,
Walker was in very bad health at the time the
trip to England was undertaken, and he said to
witness that it was the very thing to set him up.
While he was away witness made him an allow-
ance of £26 a month, for rent of cottages and use
96
of tanks, trolleys, Ac. There was a steam-pump
near Ashton Station which Walker's son claimed
on account of his father, but witness refused to
acknowledge the claim in the absence of full in-
formation. He did, however, inform Mr. Walker,
juci., that if he chose he could take it away, pro-
viding he did so at his own risk and peril.
Cross-examined by Sir T. Upington : The £25
per month continued for seven months, from 18th
April to November 18, as shown by Mr. Walker's
receipts. Under the inventory i everything found
upon the railway was included, and he did not
remember giving instructions to inventory the
goods belonging to Walker separately. He re-
collected no questions about interlocking points
and tents at Worcester, but he believed Walker
did claim some tents on the line. The tents and
cottages were not included in the £400 witness
paid to Walker. He was not aware that a good
deal of ordinary plant belonging to Walker was
still in the possession of the liquidator. There
was no demand made for the steam-pump in July
or August, 1889.
Re-examined: Many of the articles plaoed in
the inventory were afterwards specially applied
for by the plaintiff, and taken away for upe on the
Sea Point Railway.
This concluded the personal testimony, and
counsel then proceeded to read the voluminous
evidence taken on commission in England.
The reading commenced soon after two o'clock,
and had not concluded when, two hours later,
the Court adjourned till Tuesday.
SUPREME COURT-
tuesday, APRIL 21.
WALKER V. THE CAPE CENTRAL RAILWAYS—
(SIB T. BCANLEN, OPPICAL LIQUIDATOR.)
The hearing of this case was resumed, the plain-
tiff being as before represented by Sir T. Uping-
ton, Q.G, and Mr. Juta, and the defendant by
Mr. Sohreiner and Mr. T. L. Graham.
Sir Thomas Scanlen went into the box and
placed before the Court a statement tracing the
disposition of the £6,000 paid by Mr. Walker to
the credit of the company in its early days. He
found by the company's cash-book that Walker
received credit for the payment, and that the
money went for various purposes.
By Mr. Juta: £1,500 went to Relf, £1,600 to
Firbank, and £500 to Walker himself, the re-
mainder also being traceable in the books. Some
of these debts were due by the company before
Mr. Walker commenced his contract. Walker
himself received a cheque for £1,057 out of the
£6,000, which was soon exhausted. He based his
evidence upon the books of the company itself.
By the Court : All these items, paid out of the
£5,0(0, were provided for in the fourth paragraph
of the contract entered into by Walker.
Counsel then resumed the reading of evidence
taken on commission in London. When the read-
ing had continued for two hours,
The Chief Justice inquired of the jury whether
they could understand all that was being read.
Mr. J. R. Ross : 1 am getting in a perfect
muddle, my lord.
Another juryman said that it was possible to
understand the evidence personally given in the
Court, but the mass of documentary evidence wag
such that it was rapidly driving seme of the jury-
men crazy .
The Chief Justice : It is very difficult indeed, I
am sure.
Mr. Schreiner said that the difficulties to a jury
in a case of that sort were, he supposed, almost
unexampled, but really the evidence taken on com-
mission in England was part of the case, and had
in some form to be put before the jury. If it had
not been that there was such an enormous mass of
evidenoe, an endeavour would have been made to
print it.
The Chief Justice said that both sides were
blameable for the extreme length of the English
evidenoe, and added that the jurors must do the
best they could with it.
The reading continued until the afternoon, when
Sir Thomas Upington commenced his address to
the jury,
The Court adjourned till Wednesday.
(IN CHAMBEH8).
[Before Mr. Justice BUCHANAN.
IN THE INSOLVENT ESTATE OP DANIEL J.
CONRADIE.
Insolvency — Election of New Trustee —
Practice.
Mr. Molteno applied for an order authorising
the election of a new trustee to administer the
said estate, it now being unrepresented by reason
of the death of the first elected trustee.
Counsel having read an affidavit sworn to by
Mrs. Johanna Fagan, of Tulbagh, a creditor of the
estate, Mr. Justice Buchanan pointed out that the
usual practice in such oases was to make an order
authorising the Master to call a meeting of credi-
tors to elect a new trustee.
The Court made an order in the foregoing terms
97
PETITION OF MARY AKN OATBft.
Mr. Searle, on behalf of the petitioner, moved
for leave to sue in forma pauperis in an action
against the trnatee of her husband's insolvent
estate for recovery of oertain furniture seized by
him and claimed by petitioner, or otherwise for
damages.
Counsel informed the Court that he had already
certified and asked that a rule nisi, returnable on
this day week, should be granted calling upon the
trustee to show cause why petitioner should not be
allowed to sue in forma pauperis.
Bule nisi granted as prayed for.
THE CAPE OF GOOD HOPE BANK, IN LIQUI-
DATION, V. JULIA 8. PILKINGTON.
On the application of Mr. Watermeyer, leave
was given to iasue a writ of execution against the
respondent for the sum of £390, being the amount
due on calls in respect of thirteen shares in the
said bank registered in her name.
REOINA V. JAN ABEND8E AND J08IAH
ABENDSE.
Act 17 of 1867— Evidence sufficient to up-
hold conviction.
Mr. Giddy appeared on behalf of the Grown,
and Mr. Molteno for the prisoners.
This case came under review front a sentence
passed upon the prisoners by the Acting Resident
Magistrate of Malmesbury. It appeared from the
record, which was read by Mr. Molteno, that the
prisoners were indicted under Act 17 of 1867 for
stealing a sheep and killing it, and were found
guilty, and sentenced to six months* imprisonment
with hard labour. The evidence showed that the
spoor of two men had been traced from the place
in which the sheep had been slaughtered to within
about thirty yards of the first-named prisoner's
house, and that his wife and another woman were
seen leaving the house carrying large bundles,
which they concealed in a donga some distance
away. These bundles were subsequently dis-
covered, and found to contain sheep's flesh which
had recently been killed. Upon this evidence the
prisoners were convicted.
Mr. Molteno, on behalf of the prisoners, con-
tended that no attempt had been made to identify
the spoor as being that of the prisoners, and that
certainly as regarded the second-named prisoner
there was not a tittle of evidence against him, and
that the charge was based purely on suspicion.
Under all the circumstances of the case counsel
submitted that the evidence was not sufficient to
suppwt the conviction, that the sentence ought to
be set aside and the conviction quashed.
Mr. Giddy contended that the conviction was
right and was justified by the evidence.
Mr. Justice Buohanan remarked that the oase
depended solely upon a question of fact ; the
Magistrate who was iu the best position to judge
of the value of the evidence had believed the
witnesses for the Grown. Although the evidenoe
generally was not perhaps as oonolusive as it
might have been, still he could not say that it was
insufficient to support the conviction. The appeal
must consequently be dismissed and the sentence
confirmed.
SUPREME COURT.
WEDNESDAY, APRIL 22.
[Before the Chief Justice, Sir J. H. DE VlLLIBRS,
and a Special Jury.]
WALKER V. THE GAPE CENTRAL RAILWAYS-
SIB T. C. 8CANLBN, OFFICIAL LIQUIDATOR.
The hearing ef this oase was resumed, the
plaintiff, as before, being represented by Sir T.
Upington, Q.C., and Mr. Juta, and the defendant
by Mr. Sohreiner and Mr. T. L. Graham.
Sir T. Upington having concluded his address to
the jury,
The Chief Justice asked if the jurors had made
up their minds with regard to any of the issues
submitted for their judgment. If so a great deal
of time would be saved by their saying so at once,
as it was unnecessary to hear Mr. Schreiner upon
any issue upon which their minds were made up
against the plaintiff. For instance, had the com-
pany accepted the plaintiff's accounts at the general
and directors' meetings under a mistake of fact?
The foreman of the jury said that they preferred
hearing Mr. Sohreiner, who thereupon commenced
his address, remarking that he would endeavour to
strip it of all unnecessary features and place the
issue clearly before the jury.
Mr. Juta having replied on behalf of the plaintiff.
The Chief Justice proceeded to address the jury,
remarking, before he dealt with the issues in detail,
that the issues were forty-seven in number. He
had suggested at firet that the number should be
reduced, and if it had been the most unreasonable
suggestion in the world, he did not think it oould
have been treated with more contempt than it was.
No attempt was made on either side to follow this
suggestion, yet subsequently nine of these issues
were agreed upon in five minutes, which showed
that a substantial reduction might have been made.
The jury then proceeded to consider the issues
separately, giving their decision on each. They
found that £8,641 Is. 8d. was due to the plaintiff,
independently of the shares to whioh he was
entitled under {fee contract. This Bum was made
98
up as follow! : Cash advanced, £295 ; balance of
traffic account, £558 15b. 6d.; salary as agent,
£1,200 ; sundry debentures, £1,850 ; office ex-
penses, travelling, law, cablegrams, £250 ; use of
tools, £275; total, £8,928 15s. 6d. From this
amount £282 14s. 3d. was deducted for cash re-
turns, leaving the balance of £8,641 Is. 3d. The
jury also found for £1,626 18s 2d due on the con-
tract payable in shares.
The Chief Justice, in discharging the jury, said
that the oase had been about one of the most diffi-
cult a jury could have entered upon. He then
asked counsel if they were agreed as to the
remuneration the jury sheuld receive, but obtained
a reply to the effeot that the matter had not yet
been decided.
The Court then rose, judgment being reserved.
Postea (May 22).
Counsel having gone through the various prayers
in the pleadings, and the numerous issues sub-
mitted to the jury,
The Chief Justice delivered judgment. His
lordship said that judgment would be given for the
plaintiff upon the claim in convention, for fully-
paid-up shares of the nominal value of £1,626 18s.
2d., and also for £2,291 Is. 3d. The Court declared
that the debentures ef the company did not con-
stitute a preference upon the assets of the com-
pany, but must rank pari passu with the said sum
of £2,291 Is. 8d. Right was reserved to the plain-
tiff to prove against the company, for debentures to
the amount of £1,850, or such further debentures
as he might lawfully hold. Judgment was given
for the defendant company, upon the claim in re-
convention, for the sum of £291 7s. lOd.
The greater part of the afternoon was taken up
with the argument regarding the question of costs.
Mr. Bchreiner in the course of his argument,
which occupied over an hour, contended that inas-
much as his clients (the defendant company) had
gained a substantial victory with regard to the
major part of the plaintiff's claim, they were at
least entitled to have the costs divided. Counsel,
in his argument, referred te the following authori-
ties : "Jones v. Curling" (13 Q.B.D., 262),
"Harris v. Petheriok"(4 Q.B.D., 611), "Bank-
art v. Tennant" (89 L.J., N S., Ch. 809),
"Welby v. Brown" (1 Ex., 770), "Spenoerv.
Hamerton" (4 A.AE, 413), and "Williams v.
Great Western Railway Company " (8 M. <b W.,
856).
The Court, without allowing Sir T. Upington to
conclude his argument, gave the plaintiff his costs.
The remuneration of the jury was, by consent
of counsel, fixed at one guinea each per diem.
[Attorneys for the Plaintiff • Meiers. Van Zyl
A Buissinne.]
[Attorneys for the Defendant Company— Messrs.
jSpanlen 6 Syfret.]
SUPREME COURT,
(IK CHAMBERS.)
TUESDAY, APRIL 28.
[Before the Chief Justice (Sir J. H. DEVlL-
liees) and Mr. Justice Buchanan.]
IN THE ESTATE OF MART ANN HOPKINS.
On the motion of Mr. Graham, leave was given
to the curators of the above-named estate to raise
by loan on mortgage of the landed property the
sum of £300, te discharge certain debts contracted
by Mrs. Hopkins before she had been declared a
lunatic.
IN THE ESTATE OF THE LATE JOHANNES J.
WILKE AND WIFE.
On the application ef Mr. Molteno, authority
was given to the father and natural guardian of
the minors Boshoff to consent to the sale of the
landed property in the said estate of which they
are co-heirs with the children of the testators, on
oendition that their share of the proceeds be paid
into the Guardians 1 Fund.
IN THE ESTATE OF THE LATE JEAN PIERBE
TIRAN.
Curator ad litem — Minors.
In an action for damages about to be
brought against executors testamentary for
negligence in realizing the landed property
of the estate, the Court refused to put
Minors to the expense of a Curator ad litem
where the widow and the major children
were in a position to bring the action, and
at the same time protect the interests of
the minors.
Mr. Tredgold applied for the appointment of a
curator ad litem to the minor children of the
deceased in an action about to be instituted against
the executors testamentary for damages by reason
of their negligence in regard to the realisation of
the landed property in the estate.
It appeared from an affidavit sworn to by the
widow of the late Jean Pierre Tiran, that the
estate had been damnified to the extent of £2,600
owing, as it was alleged, to the negligence of
executors testamentary, against whom an action
was about to be instituted, and as the minors were
interested in the action it was thought desirable
that they should be represented by a curator ad
litem.
99
■ ifc
The Chief Justice remarked that the widow and
the major children could very well bring the action
and at the same time look after the interests of
the miners. He saw no reason to incur the ad-
ditional expense of appointing a curator ad litem.
No order would be made.
OATES Y THE TRUSTEE INSOLVENT ESTATE
OF OATES.
On the motion of Mr. Searle, the Court made
absolute the rule nisi admitting the applicant to
sue tn forma pauperis in an action for recovery of
certain household furniture, or otherwise for
damages.
Mr. Searle was appointed counsel and Mr. J.
Hamilton Walker attorney.
THE CAPE OF GOOD HOPE BANK (IN LIQUI-
DATION), IN BE ABNOLZ.
Insolvency — Curator bonis — Where a pro-
visional order for sequestration had been
granted and a curator bonis appointed,
the Court refused to confer upon the
curator bonis the powers of a provisional
trustee pending the provisional order being
made final.
Mr. Juta, on behalf of the liquidators of the
above bonk, applied for authority to enable the
curator bonis of the estate of Mr. Arnolz, of
Victoria West, to collect accounts, sell perishable
stock, and generally manage the business, pending
the provisional order for sequestration being made
final.
The Chief Justice remarked that it was not the
practice to appoint a provisional trustee until the
final order for sequestration had been made. The
present application was an ingenious attempt to
get the Court to confer upon the curator bonis the
powers of a provisional trustee. There were no
special circumstances in the present case for con-
ferring these powers on the curator bonis, and as
the return day of the summons was near at hand,
no prejudice could be occasioned to parties in-
terested by the business remaining olosed in the
interim.
THE OAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION).
Mr. Juta presented, fer the confirmation of the
Court, a list of compromises entered into between
the liquidators and debtors of the bank.
The required confirmation was given.
WBIOHT V. WILLIAMS.
This case (the facts of whioh appear ante
p. 33) was before the Court en the 26th February
last, but the Court deferred giving judgment
until it had heard the evidence of the defendant,
who was at sea.
Mr. Graham now informed the Court that the
defendant had presented himself for examination.
Captain William Howard Williams, in answer
to the Chief Justice, said that he was not present
at the hearing of the case, because he only received
the summons at nine p.m., and he had instructions
to sail at six a.m. en the following morning, so
that he had not even time to instruct an attorney.
Witness further stated that he never promised
Wright " lay." He spoke to all the men whom he
engaged oollectively, and told them that if they
worked well and behaved themselves they would
get " seal " money. Wright did not behave him-
self well, and after his return to Cape Town he
wanted double what he would have been entitled
to if he had conducted himself in a proper manner.
Cross-examined by Mr. Attorney Du Preez *.
He did not ask Quine to get him a certificated
mate ; he simply told him to get a mate ; a man
with a certificate was not necessary. He never
promised Wright 4d. a skin for every seal killed,
and 16s. on every tun of oil obtained. He had no
authority to make any such promise. He made no
distinction between the pay of the ordinary seamen
and that of a mate. He was present during the
hearing of the case of Wright v. De Pass, but he
was not called to give evidence. He would
willingly have given evidence had he been called.
He had been brought before the Magistrate on a
charge of assaulting the plaintiff, and was fined
6s., but it was not on that account that he refused
plaintiff his "lay."
In reply to the Court, witness stated that he
arrived in Table Bay on the 16th instant, and that
he was at present under orders to sail.
This concluded the examination. Judgment was
again deferred.
Pestea (May 16).
The Court delivered 'the following judgment t
The Chief Justioe said t It was decided in the
action brought by the present plaintiff against De
Pass & Co., that, as seaman, he was not entitled to
recover from the shipowners more than was stipu-
lated for by the ship's articles to which he was a
party. He now seeks to recover from the present
defendant, Williams, the amount which he would
have been entitled to receive if his additional
agreement with the defendant, as the agent of De
Pass 6 Co., had been inserted into the ship's
articles, as well as the costs of the unsuccessful
action against that firm. The olaim is based upon
a contract by whioh the defendant is alleged to
have warranted his agency for the firm, and) in the
100
alternative, upon a wrong done to the plaintiff by
reason of the defendant's alleged false and fraudu-
lent representation that he was authorised by the
firm to enter into the agreement on their behalf
with the plaintiff. In regard to the first ground,
the plaintiff's counsel has relied mainly upon those
English cases, of which Collen v. Wright
(8 E. and B., 647) was the first, in which
the doctrine of warranty in regard to the
undertakings of persons falsely professing to act as
agents was established. The nature of the obliga-
tion of the professed agent in such cases was said
by Willes, J., in delivering the judgment of
the majority ef the judges, " to be well expressed
by saying that a person professing to contract as
agent for another, impliedly, if not expressly,
undertakes to, or promises the person who enters
into such oontraot, upon the faith of the professed
agent being duly authorised, that the authority
which he professes to have does in point of fact
exist." The same learned judge, during the argu-
ment, referred to the Code Civil as providing that,
if the mandate is submitted to the inspection of
the other side, there shall be no warranty implied,
<( an exception/* he adds, " which seems to recog-
nise the general rule," and he proceeds to say that
" as that Code is founded on the old French law,
and ultimately on the Digest, it is probable that
the doctrine is more ancient than is supposed."
On reference, however, to the Digest, I can find no
authority for such an implied warranty, nor
oould there, under the Roman law, be
any necessity for implying a warranty,
seeing that the agent, as well as
the principal, was directly liable to third
persons contracting with such agent. The agent
was not regarded as a mere representative for the
purpose of entering into contracts on behalf of his
principal. Persons contracting with him had
their election, so long at all events as the agenoy
oontinued, whether they would prooeed against
him or against his principal. In the Dutch law
the change from the Roman to the more modern
doctrine of agenoy was a gradual one, and was not
effected without much differenoe of opinion. In
the " Dutch Consultations " (1,192) the opinion
of an eminent advocate is given, to the effect
that an agent who has chartered a ship on behalf
of his principal is liable for the freight ; and
"Matthaus" (De Auct, 2, 6, 86) lays down
generally that a person who contracts in an official
capacity is personally liable on the oontraot so long
as he retains that capacity. " Voet " (14, 8, 6)
offen no positive opinion on the subjeot, but
there can be no doubt, from the authorities col-
lected by him, that the better opinion was that the
principal alone, and not the agent, is
liable, except j(n jftlffisW *!^ Tsl' : where
the oontraot was made with the agent in the
belief and upon the faith of his being the principal,
where the agent professing to act for his principal i
had no authority so to act, and where the agent I
had expressly bound himself on behalf of the "
principal. In these excepted cases the agent
would be liable for damages arising from the
breach of contract, but oould not be compelled
specifically to perform a contract, such as a promise
of marriage, which the principal alone is alleged to
have undertaken to perform in person. In the
present case it is clear, from the evidence of
Captain Spence, that the defendant had no
authority from the firm to enter into the addi-
tional agreement sued upon. If, therefore, the
agreement was one upon which the firm would
have been liable in case the requisite authority
had been given to the defendant, there can be no
doubt that the defendant, if he did give the addi-
tional undertaking, would be liable in damages.
This liability would exist, not by virtue of such a
warranty or promise as the English law deems it
necessary to imply, but by virtue of the rule of
our law, that the agent is liable fer damages on
the contract itself which he has entered into on
behalf of a principal from whom he had no
authority to enter into such contract.
But it has already been decided that
the agreement sued upon could not be
enforced as against the defendant's principals,
namely, De Pass & Co., even if they had author-
ised him to make it. The ship's articles
are silent as to suoh an agreement, and we are
bound by the decision of the Court that the
plaintiff had no claim against the firm beyond the
terms of the articles. If he had no claim against
the firm, he clearly has no claim against the agent
of the firm in respect of the agreement itself. Has
he any claim for damages against the defendant in
respect of his alleged false representation ? If the
misrepresentation was fraudulently made, the
defendant would dearly be liable, and if it was
made reklessly , regardless of its truth or false-
hood, it was made fraudulently. The representa-
tion alleged to have been made was, in substanoe,
that whatever the form of the written contract,
the plaintiff would reoeive certain extra remunera-
tion for his land services on the sealing
expedition, and that the defendant had
authority from the firm to enter into
an engagement to that effect. Upon this
question sf fact the Court entertained considerable
doubt after hearing the evidenoe given on behalf of
the plaintiff. Judgment was therefore deferred
until the Court oould take the evidenoe of the de-
fendant himself. We are satisfied after hearing
his evidenoe that his only reason for not defending
the action was that he did not reoeive the summons
until he was on the point of starting with his
vessel on a coasting voyage, and that he did not
enter inte the additional agreement relied upon or
make the alleged false representation to the plain-
loi
tiff. It is greatly to be regretted that the plaintiff
did not in the first instance aooept the offer made
by the firm of De Pass & Co., for as against the
present defendant 1 am of opinion that he has no
elaim whatever. The judgment of the Court must
thesefore be fur the defendant.
[Attorney for the Plaintiff— H. P. du Prees.]
SUPREME COURT.
(IN CHAMBBB8).
TUESDAY, MAY 12.
[Before the Chief Justice (Sir J. H. DB Vlls-
LIEH8) and Mr. Justice BUCHANAN.
THB UNION BANK (IN LIQUIDATION).
Mr. Schreiner presented, for the sanction of the
Court, certain compromises proposed to be effected
by the official liquidators of the above bank with
certain debtors thereof.
The Court, after hearing counsel, granted the
sanction.
IN THB B8TATB OF THB LATB CHARLES POTB.
On the motion of Mr. Graham, authority was
given to the Master of the Supreme Court to call a
special meeting of creditors of the insolvent estate
of the late Henry Heath, for the proof of debts
and election of a trustee.
PETITION OF MAX 8GHAK8CO.
On the application of Mr. Searle, leave was
granted to the applicant to sue in forma pauperis
in an action to be instituted against one Smile H.
van Noorden, for a declaration of rights, and for
an account of the partnership dealings between the
parties.
PETITION OF DIRK ABBAHAM8E
Mr. McLaohlan, on behalf of the petitioner,
moved for leave to sue in forma pauperis in an
action to be instituted against his wife for divorce,
by reason of her malicious desertion and adultery.
Referred to counsel for his certificate.
WILSON V. WILSON AND MINNA A R.
Evidence — Commission de bene esse.
Mr. Graham moved for the issue of a commis-
sion to take evidence in the suit de bene esse at
Fraserburg.
Mr. Jnta, who appeared for the respondents,
consented, en condition that the commission were
made a joint one.
The Court ordered a joiat commission to issue, as
prayed for, and appointed the Resident Magis-
trate of Fraserburg commissioner.
STBWABT V. KINGON.
Practice — Pleading — Bar — Purging default.
Mr. Graham appeared for the applicant (defen-
dant), and
Mr. Shiel fer the respondent (plaintiff).
It appeared from affidavit that this action was
oommenoed by a writ of arreBt being issued on the
11th February last against the defendant for the
sum of £68. The arrest was effected on the same
day that the writ was issued, as the defendant was
on the point of leaving for England, but on his
finding security the defendant was allowed to leave
the Colony.
The plaintiff's declaration was filed on the
18th February. The defendant in his plea
admitted the correctness of certain items in the
account, denied liability in respect of others, and
counter-claimed for the sum of £210, less £48, in
respect of certain transactions set out in the claim
in reconvention. An exception replication and
plea was filed on the 11th March last, and after
due notice the defendant was barred from answer-
ing plaintiff's exception.
Mr. Graham now applied for leave to purge
defendant s default, to file his rejoinder, and to
have the action postponed until the arrival of the
defendant, who is shortly expected.
Mr. Shiel remarked that his client had no desire
to take an undue advantage of the defendant, but
he was anxious at the same time that the case
should come on for trial at as early a date as
possible.
The Court, after hearing counsel, granted the
defendant leave to purge his default, and postponed
the trial of the case till August 1, unless the de-
fendant should return to the Colony during the
ensuing term, in whioh event the case was to be
set down for hearing at once, the defendant
(applicant) to pay the costs of the present
application.
102
SUPREME COURT-
friday, MAY 15.
[Before the Chief Justice (Sir J. H. DE
VlLLIEBS), Mr. JuBtice SMITH, and Mr.
Justice Buchanan.]
BEGINA V. AAB0N PLESBIS. ,
Act 18 of 1873— Sections 2 and 4— Con-
viction under wrong section.
The Chief Justice remarked that this case had
come before him und»r review from the Resident
Magistrate of Worcester. The prisoner was in-
dicted for contravening section 2, sub- sections 3
and 7, and section 4, sub-section 6, of Act 18 of
1878. The prisoner was convicted of contravening
section 4, sub-section 6, and was sentenced te two
months' imprisonment with hard labour, spare
diet, and solitary confinement for two days, and
was further required to sign a bond to keep the
peace for three menths. The Chief Justice said
that the prisoner had been convicted under the
wrong Bection, and the sentence would be altered
to that of a fine of £1, or in default, one month's
imprisonment with hard labour.
BEGINA V. HABEBKOBN.
Mr. Justice Buchunan made the following re-
marks with regard to this case, which was tried at
the late criminal sessions. The learned Judge
said that before proceeding with the business of
the day he wished to refer to a circumstance con-
nected with the late criminal sessions. Among
the cases on the calendar was that of Regina v.
Haberkorn, a sailor in the German Navy, who was
charged with murder. He expressed his surprise
at finding that the prisoner was unrepresented by
counsel, as under the circumstances of the case he
should have expected that a defence would have
been prepared for him. This not having been
done, he requested Mr. Graham to defend him pro
Deo, He had since been informed that some time
before the trial the German Consul-General had
been under the impression that the accused would
be tried, not for murder, but for culpable homicide,
and that all steps necessary would be taken for his
def enoe. It also seems that the Consul-General
understood that every person charged with a
serious crime was by law necessarily provided
with counsel to defend him, as is the rule in
Germany. He thought it due to Herr Yon
Treskow to state this, so that any misconception
arising out ef ignorance of the facts might be
removed so far as he was concerned.
PROVISIONAL ROLL.
HABBIS AND CO. V. GBODNEB.
Arrest, writ of— Confirmation.
Mr. Juta applied for provisional sentence for
£81 5s M and for confirmation of the writ of arrest.
The defendant, who appeared in person, said
that he did not know why he had been arrested.
He bad no intention of sailing for Australia, as
had been alleged in one of the affidavits. He was
unable to pay the entire debt, but he had made
the plaintiffs an offer of £10 which he was under
the impression they had accepted.
Provisional sentence granted as prayed for.
BIGAL V. GBODNEB.
Mr. Sohreiner applied for confirmation of the
writ of arrest against the defendant.
The defendant (who was the same as in the
previous case) appeared in person, and denied that
he owed Rigal anything. He also pointed out to
the Court that the writ was issued against
Abraham Grodner, whereas his (defendant's) name
was Aaron Grodner, although he had a brother
whose name was Abraham.
In answer to Mr. Justice Buchanan, defendant
said he did not know where his brother was at
present.
Mr. Sohreiner having obtained leave to amend
the writ by substituting the name of Aaron for
Abraham, the Court confirmed the writ of arrest,
and the defendant left the Court, accompanied by
the Deputy Sheriff.
LIEBENBEBG V. WE8THUY8EN.
On the motion of Mr. Graham, provisional sen-
tence was granted on an acknowledgment of debt
for £448, payable at sight, and on a ipromissory
note for £61.
BTEGMANN V. COHEN.
Promissory Note — Provisional sentence-
Payment into Court.
Where on an application for provisional
sentence on a promissory note, the defen-
dant alleged that he had a claim for damages
against the plaintiff, and prayed that the
amount of the judgment should be paid
into Court to abide the result of the action,
the Court refused to accede to the defen-
dant's request and granted provisional
sentence.
Mr. Searle appeared for the plaintiff and Mr.
Jmtaforthe defendant. This was an application
103
for provisional sentence on a promissory note for
£381 5a.
Mr. Jnta, in opposing provisional sentence, re-
marked that hia olient had a claim for damages
against the plaintiff for unlawfully attempting to
sequestrate his estate, and submitted that if sen-
tenoe were granted the money ought to be paid
into court.
Mr. 8earle, in reply, pointed out that it was in
variably the practice of the Court to grant pro-
visional sentence on a liquid document, and that
there were no grounds for departing from that rule
in the present case.
The Chief Justice remarked that the defendant
was clearly liable, and he could see no reason for
making an order that the amount of the judgment
should be paid into court, to abide the result ef
the action which the defendant said he was about
to institute. Provisional sentence would be
granted with costs.
DE VILLIBBS V. BAARTMAN.
On the application of Mr. Molteno, provisional
sentenoe waa granted on a promissory note for
£640.
BATE V NEL.
Practice— Decree of civil imprisonment —
Nulla bona — Insufficiency of Sheriff's re-
turn.
Mr. Molteno applied for a writ of civil imprison-
ment against the defendant on an unsatisfied judg-
ment for £179 16b. 3d., and a taxed bill of costs for
£186 10a. 7d.
Mr. Searle opposed the application, and offered
part payment of the debt, which, however, Mr.
Molteno declined to accept.
The Chief Justice, in giving judgment, remarked
that as counsel for the plaintiff had declined the
terms offered by defendant, the oase must be
decided on its merits. There had been no return
of nulla bona : the endorsement on the writ was to
the effect that property to the value of £25 had
been attached and subsequently released by in-
structions from plaintiffs attorney. Civil impri-
sonment was a last resource, and ought not to be
had recourse to until every step had been taken to
realise the personal effects. In his (the Chief
Justice's) opinion, the return made by the Sheriff
was not sufficient to justify the Court in granting
a decree of civil imprisonment. The application
would be refused with costs.
HALL AND CO. V. OCTOBER.
Mr, Bhiel applied for provisional sentence en a
promissory note for £800 due on the 6th April
lart.— Provisional sentence granted.
THE CAPE OF. GOOD HOPE BANK, IN LIQUIDA-
TION V. ABNOLTZ, JUN.
On the motion of Mr. Schreiner, the final ad-
judication of the defendant's estate was ordered.
THE CAPE OF GOOD HOPE BANK, IN LIQUIDA-
TION V. ABNOLTZ AND CO.
On the application of Mr. Schreiner, the order
for the final adjudication of the defendant's estate
was granted.
BELLAR BROS. V. CRANNA.
On the motion of Mr. Watermeyer, provisional
sentence was granted on a promissory note for
£59 lis.
CRANKO'S EXECUTORS V. T. J. VAN SCHOOR
On the application of Mr. Molteno provisional
sentence was granted on a mortgage bend for
£3,000, less £49 paid on account. — Property de-
clared executable.
MYBUBGH'S ASSIGNEES V. KLERCK.
On the motion of Mr. Juta, the order for final
adjudication of the defendant's estate was granted.
HIRST V. MULLER, SMITH AND CO.
Ordered to stand ever till Thursday next.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : Anthony
Miobael Holtzhausen, Johannes Petrus du
Plessis, John George White, Irvine Pascoe
Hughes, Jan Barend Pieter Frylinok, Emanuel
William Gough, Jacobus Adriaan Louw Momsen,
Lawrenoe & Sons, Edward Augustus Rudd, Petrus
Jacobus Maritz, Johannes Hermanns Cloete,
and Matthys Michiel Andries de Jager.
GENERAL MOTIONS
PETITION OF FREDERICK JACOBUS VAN ZTL.
On the motion of Mr. Jonbert, the rule nisi was
made absolute conferring upon the Registrar of
Deeds authority to cancel a certain mortgage bond
for £150, passed in 1857 by the petitioner's father
in favour of one Balthazar Klopper, now deoeased.
TOPP V. TOPP.
On the application of Mr. Schreiner, leave was
granted to issue a commission to take the evidence
de bene esie of petitioner and her witnesses at
Edinburgh.
Mr. William Gardner, sheriff's clerk ef Mid-
lothian, was appointed commissioner.
104
THE CAPE OF GOOD HOPE BAKE, IN
LIQUIDATION V. POBTEB.
On the motion of Mr. Schreiner, authority was
given to the official liquidators of the above bank
to issue a writ of execution against the respondent
for £160 in respect of the call on fire shares in
the said bank, of which he is the registered owner.
THE CAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION) V. THE EXECUTORS OF VAN LIEB.
THE UNION BANK (IN LIQUIDATION) V. WAT-
SON'S HEIBS AND EXECUTORS.
As the issues in these two cases which were
before the Court on the 17th and 12th March
respectively (C.T.L.R. ante 78 and 72) were the
same, the Court decided to hear them together.
Mr. Schreiner appeared for the applicants in
both cases, Mr. Juta for the executors of Van
Lier, Mr. Searle for Watson's heirs, and Sir T.
Upington, Q.C, for Watson's executors.
Mr. Schreiner said that in the case of Van Lier
he moved on the part of the Cape of Good U ope Bank
that a rule already granted should be made abso-
lute, which called upon the defendants to show
cause why they should not be called upon to pay,
de bonis propriis, certain calls of £30 per share.
Van Lier left the shares in question for the benefit
of the Cape Town Ladies 1 Benevolent Seoiety, and
the dividends were duly paid over.
Mr. Juta read an affidavit of Mr. Harry Gibson,
to the effect that at the time when the estate was
liquidated the said bank was in a flourishing con-
dition, the assets being more than sufficient to
meet the liabilities. There was then no human
probability that the said bank would at any time
be placed under the Winding-up Act. The terms
of the ordinance were duly complied with when the
estate was liquidated, but no claims were then
lodged by the said bank.
Mr. Schreiner then formally moved, on behalf of
the Union Bank, for an order against the heirs
and executors of the late Thomas Watson.
Mr. Justice Smith : There was nothing in the
will of Van Lier authorising the trustees to hold
the shares ?
Mr. Schreiner : Yes ; they were not to sell or
dispose of them.
The Chief Justice : Strictly speaking, the execu-
tors are not now asked to pay de bonis propriis.
They are only asked to pay the money to the
liquidators. We oould not well hold them liable
de bonis propriis as if they had neglected their duty
by not selling the shares.
Mr. Schreiner said that the executors could not
be heard to say that their account of the money
was that they had paid it to the heirs.
The Chief Justice : It is not now, strictly, an
application for payment de bonis propriitf
Mr. Sohreiner : Yes, my lord, because they have
made a return of nulla bona. I shall be able to
show that the oourse we are taking is the one
usually taken in these oases against executors in
England.
Mr. Justice Smith: You say the executors
were bound to set aside oertain moneys to meet
future calls which might arise ?
Mr. Sohreiner : Yes, and that they took the risk
if they did not do so. The proper course is for
them now to pay us the money.
Mr. Justice Buchanan : The English oases would
hardly apply to some of our Colonial statutes.
The English practice is so vezy different.
Mr. Sohreiner said that in Watson's case the
history of the matter was that the official liqui-
dators first applied to the Court for an order
against the heirs to show cause why they should
not be placed on the list of contributories, making
them jointly and severally liable for the payment
of £7,500, less £425 17s. To the applicants it did
not matter which of the parties paid.
The Chief Justice : Anything against the heirs
would be by action. They oould not be put en the
list of contributories.
Mr. Sohreiner : That would be so in any new
case, but it will be remembered that this case was
commenced before the Court gave an indication of
its present view.
The Chief Justice : It seems clear in' the present
case that they cannot be placed on the list as heirs
but they might be held liable by an action.
Mr. Sohreiner said that it was desired by no
one to merely shift the method of arriving at the
legal position.
The Chief Justice : If you get a judgment
placing the executors on the list of contributories
that is all you want. You can leave it to the
executors to fight it out with the heirs.
Mr. Schreiner : Oh yes ; they are all good people,
and able to pay. The evidence shews that about
£5,000 was paid to each heir, and now there is a
claim for £7,600, of which £425 17s. has been
satisfied.
Mr. Justice Buchanan : I suppose there may be
a subsequent call ?
Mr. Schreiner : It is possible, my lord.
Sir T. Upington said that, immediately after
their appointment, the executors caused a notioe
to be inserted in the Government Gazette and other
newspapers, in 1884, calling upon all persons
having claims to send them in to the executors,
but no claim was then made by the Union Bank,
nor had the executors knowledge of the existence
of any debt until July, 1890. They had filed no
fewer than ten liquidation and distribution aooounts
in the estate of the late Thomas Watson, and
prior to the final distribution of the funds these
accounts were duly advertised and not objected to.
The exeouiers had from time to time endeavoured
106
to sell the shares, by public auction on the stoep
of the Commercial Exchange and through brokers,
bat failed to do bo. The executors also called
upon the heirs to take over the shares, but they
declined to do bo. After the death of Thomas
Watson the chairman of the Union Bank pur-
chased a large number of shares, and the executors
had no reason to doubt the soundness of the bank.
Mr. Schreiner read the affidavit of Mr. George
William Steytler and Mr. Harry Gibson, to the
effect that between 1884 and 1890 there were large
transactions in Union Bank shares. Business was
particularly brisk during 1888 and 1889, when
some seventy transactions took place.
Mr. Searle read the affidavit of Mr. Thomas
Tennant Watson, a Government land surveyor and
one of the heirs, to the effect that shortly after the
death of Mr. Thomas Watson a tender of Is. per
share for certain Union Bank shares held in the
estate was made, but refused by the directors of
the institution. Counsel said that the legal
position taken up by the heirs was that they could
not possibly be placed on the list.
Mr. Schreiner said that of course if the Court
held that the heirs could on no account be placed
en the list of contributor! es, then the remedy
would be by way of action.
Sir T. Upington said that in the case of the
executors of Watson's estate he contended that
there was not the slightest liability upon the
executors to pay this money de bonis propriis, in
the events which had happened. A very wide
distinction had to be drawn between the English
company law and our own, both as regarded the
formation of companies and their winding up.
With regard to the latter point, he thought it
would be as well if he at once referred to the
Winding-up Act in England and that in this
colony, for the purpose of drawing a comparison
between the position of executors in the two
countries. The Companies 1 Act of 1862
provided that if any contributory died,
either before or after he had been
placed on the list, his personal repre-
sentative Bhould, upon certain conditions
being complied with, be held liable. There was no
such provision in the Colonial law, enabling the
Courts to place upon the list of oontributories
persons in the position of executors. Counsel at
great length then read extracts from the English
statutes relating to company law and the law
regarding executors. He also read a judgment
of the Lord Chancellor, to the effect that when an
executor had passed his accounts through the
Master bis liability ceased, and any remedy that
existed was against the legatees.
The Chief Justice : Knowing this was an un-
limited liability company, ought not the executors
to have laid aside certain moneys for the purpose
of meeting calls ?
Sir T. Upington said no, not unless the Court
held that no executors should distribute the assets
in any estate whilst one share in an unlimited
company remained unsold.
The Chief Justioe said that here was an un-
limited liability hanging over the head of an
executor. Ought he not to settle and realise the
shares ? If he did not, did he not leave the
matter undone at his own risk and cost ?
Mr. Justice Smith : Who ought to be liable ?
The man who has done the wrong ; the executor ?
Sir T. Upington : I do not say the legatee
is liable, but if anyone is, it is he.
The Chief Justice said that the creditors of the
bank looked to the shareholders, and when they
asked who the shareholders were, they were told
that one shareholder was the estate of a wealthy
man, named Thomas Watson.
Sir T. Upington contended that the creditors
were guilty of negligence in not making inquiries.
Mr. Justice Buohanan : Supposing that when
Watson was alive he made a gift of £10,0i0 to
a man, and that when Watson died his estate
could not pay the calls on these shares, surely they
could not go back and take that £10,000 away ?
Sir T. Upington : Certainly not. It would be a
monstrous state of things.
Mr. Justice Smith : The obligation in this case
was to sell the shares.
The Chief Justice : And some st ares were sold,
that is clear.
Mr. Justice Smith : I think I am right in saying
hundreds of shares were sold.
Sir T. Upington said that there was no evidence
as to the consideration which passed for those
shares. It would perhaps be found that in nine-
tenths of the oases the shares were absolutely made
gifts of.
Mr. Justioe Smith : It came before the Court in
a recent case that Mr. Farmer bought a large num-
ber of these shares after 1884.
Sir T. Upington : Yes ; but they were from Mr*
W. G. Anderson, his own partner.
The Chief Justice i No ; most of them came
from Mr. Myburgh.
Sir T. Upington said that at any rate nothing
was known as to the consideration which passed
between the partners. Unless it could be shown
that these executors had acted negligently and im-
properly they could not be held personally liable
for the calls.
The Chief Justice said that the onus lay with
the defendants. They were sought to be placed en
the list, and it was for them to show they were not
liable.
Sir T. Upington said that the strong position he
took up was that only the estate of Thomas Wat-
son oould be operated upon by the liquidators in
this case.
Mr. Justice Smith : Whom can you sue ?
106
Sir T. Upington : The legatees.
The Chief Justice : But has not the plaintiff
two strings to his bow ?
Sir T. Upington : I say no ; once the accounts
are passed the only remedy is against the legatees.
Whether they can be held liable I don't say.
The Chief Justice : The question is, who is to
fight it out with the legatees and heirs ?
Sir T. Upington then proceeded to refer to the
English authorities bearing on the case, and con-
tended that under no circumstances could the
executors be held liable.
The Chief Justice : When Mr. Thomas Watson
died his estate remained in partnership with the
bank. His executors, knowing that there is
in existence such a risky partnership, pay out the
heirs. Were they justified ? That is the point.
Mr. Juta addressed the Court on behalf of the
respondents in the case of Van Lier.
Mr. Searle having concluded his argument as to
the non-liability of Watson's heirs,
Mr. Schreiner replied at length for the appli-
cants. He said that it was perfectly true the
executors had paid £5,000 to each of tne Watson's
heirs, but they bad done so purely at their own
risk, if, as was the case, they knew what the
ordinance was. Clearly it was the duty of the
executors either to sell the shares or, finding that
an impossibility, to compel the ten heirs to take
five shares apiece. Until they had done that the
estate was hung up. Mr. Schreiner had not con-
cluded his argument when
The Court adjourned.
SUPREME COURT.
SATURDAY, MAY 16.
CAPE OF GOOD HOPE BANK (IK LIQUIDATORS)
V. VAN LIER'S EXECUTORS.
UNION BANK V. WATSON'S HEIRS AND
EXECUTORS.
Mr. Schreiner represented the applicants ; Mr.
Juta, Van Lier's executors ; Sir T. Upington, Q.C.,
the executoro of the late Thomas Watson ; and Mr.
Searle the heirs in the estate.
Mr. Schreiner continued his argument in reply.
He contended that the executors were liable be-
cause they made a distribution of as3ets without
haying legal power to do so. He referred their
lordships, in support of this contention, to the
recent oase of Hofmeyr (Cape Times Law Reports,
page 66).
Mr. Justice Smith : In that case the shares were
left to Mrs. Hofmeyr.
Mr. Schreiner submitted that if the heirs would
not take the estate as a whole the executors
ought to have retained possession of the
entire estate until they had found someone
willing to take the shares up. The heirs were
asked to take over the shares. They said they
would have the Good Hope shares but not those of
the Union Bank. Then the executors
eught to have refused to pay over the money
without an indemnity for future calls.
It was idle to say they did not know there would
be a call. There was clear proof of the claim, in
the shares themselves. The executors received a
certain estate, which they were bound to admin-
ister according to law. They were managers to
some extent, but also personal representatives of
the deceased, as was pointed out in the case of
Fisher, in which his lordship the Chief Justice
laid down the position of the model executor. The
oase was not one in which a creditor was seeking
judgment. The bank had already got the judg-
ment when the Court authorised the calls. His
position was, broadly, that the estate of Watson
was already on the list of contributories, and that
as the executors represented the estate, judgment
had really issued against them. The return of
nuUa bona was no answer to the claim.
Mr. Justice Buchanan said there was a distinct
difference between the position of the executors
and that ef the heirs.
Mr. Schreiner : Decidedly ; the executors are on
the list.
The Chief Justice said that the Court would be
prepared to decide whether the executors were
liable de bonis propriis. It was quite possible there
might be an action against both the executors and
the heirs, but what the Court said in the oase of
Hofmeyr was, that if the heirs were proceeded
against they could not be put on the list, but must
be proceeded against by some other form of action.
Mr. Schreiner submitted that the bank had
double remedies. He did not think there was
much sympathy with the heirs in this oase. They
had: received £6,000 a-piece, and were only asked to
pay £760 each towards the settlement of their
father's debt.
Mr. Justice Smith : Surely they may ask why
they are to pay £750 if the executors have not
done their duty ?
Mr. Schreiner : Oh, yes. When we get our
judgment we shall be able to wish both parties
God-speed on their respective roads.
Judgment was reserved.
Postea (May 27th).
The Chief Justice remarked that the Court
before delivering judgment in this oase, would like
to see an affidavit from the liquidators setting
forth to whom dividends had been paid, and if to
107
the executors, had they credited the heirs with the
■mount of the dividends ?
Mr. Schreiner informed the Court that Wat-
ton's estate had been duly credited with the
dividends.
The Chief Justice : We should like to see these
facto on affidavit.
Pertea (May 29th).
The Chief Justice observed that the Court had
given much anxious consideration to this case, and
they were of opinion that for the present at least
no order should be made on the rule nuu In the
present case the executors could suffer no hardship,
as in the interim they were in a position to sue the
heirs. Cases, however, might occur in which great
hardship might be done to executors who had acted
in a bona-fide manner if no opportunity were given
them of suing the heirs for the amount that they
had paid over. In the case under consideration
time ought to be given the executors to sue the
heirs, and consequently bo order would be made
on the rule until the last day of next term, the
31st August.
Mr. Schreiner asked whether the remarks which
had fallen from the Bench applied also to Van
Lier'scase?
The Chief Justice said that in the latter case a
shorter time might be allowed, as he understood
the parties were resident in the Colony. There
was also the case ef the Paarl Bank v. Boux.
Sir T. Upington, Q.C., informed the Court that
in the last-mentioned case an action was about te
he instituted by the liquidators of the bank against
the heirs of Boux.
The Chief Justice remarked that under these
circumstances no order would be made on any of
the rules until the 81st August next, but in the
interim the Court would expect the executors to do
their duty and find funds to meet the claims.
[Attorneys for the Union Bank. Messrs. Fair-
bridge 6 Arderr.e, for the Cape ef Good Hope
Bank. Messrs. Reid & Nephew, for Van Lier's
Executors Messrs. Wessels 6 Standen, for Watson's
heirs. Messrs. Van Zyl 6 Buissiane, for Watson's
Executors. Messrs. Reid 6 Nephew.]
WILSON AND HALL V. WESSELS.
Diamond Mine —Trespass — Act 19 of 1883,
Section 76— Statutory rights of owner —
Interdict — A ppeal.
Sir T. Upington, Q.C., with Mr. Searle, repre-
sented the appellants, and Mr. Schreiner and Mr.
Molteno the respondents.
Sir T. Upington said this was an appeal from a
decision of the High Court of Griqualand in an
application made by one Johannes Jacobus Wessels,
of Wellington, against the present appellants,
Wilson A Hall. A notice of motion was issued,
calling upon them to show cause why they should
not be interdicted, and restrained from working
themselves, or by their agents, in the Premier
Mine at Kimberley. The application was sup-
ported by the affidavit of a Mr. Marais, who said
he was the general agent of Mr. Wessels, of
Wellington, the owner and proprietor of the
farm upon whioh the mine was discovered, of
which he said Wessels held undisputed title.
The affidavit went on to say that a diamond-mine
had been discovered en the said farm, and that a
number of persons proceeded to the mine and
marked out claims, that they continued trespassing
on the said farm, with a view to winning diamonds,
the property of the applicant Wessels, without hie
leave or licence, or the consent of anyone having
authority under him. Applioant saw among the
diggers a number of men whom he knew, and
called upon them to leave, but he alleged that
the defendant Wilson commanded them to remain,
and informed applicant that he (Wilson) had
pegged out a claim himself. The affidavit of H.
A. Ward was also read by counsel. It was to the
effect that twenty people were working at
different parts of the mine without consent,
whioh was an act of wilful trespass. The
defendant Wilson had informed deponent that he
had pegged out a olaim, and intended working it
whether the owner gave consent or not. Counsel
was proceeding to refer to the evidence of further
parties, when
The Chief Justioe remarked that their lord-
ships had read the affidavits in the case.
Sir T. Upington said then that would shorten
matters. The two questions raised in the case ,
Counsel continued, were, first, as to the rights of
the present appellants te go upon the farm at
all, and secondly, even if they had no right,
whether the proper person to proceed against
them was Mr. Weasels. In regard to the first of
these questions he might at once state that in view
of section 76 of Act No. 19 of 1888, which governed
those proceedings, he could not ask the Court to
say that the persons who went upon this property
had an undoubted legal right to go there, there
having been no proclamation of the mine by
the Government as a publio diggings or mine, and
consequently, in his opinion, he might have some
difficulty in asking the Court to believe that his
clients did net misconceive their legal position in
regard to going upon this land. He would like to
say that the fact of his making that candid
admission did not in the slightest degree trench
upon suoh right as the Government might have to
declare this mine to be a publio mine under sec-
tion 76, for he had seen it stated that the effect
108
of the judgment of that Court would be to hold
that the Government, under the drcumstanoes,
would have no power whatever to deolare the mine
a public diggings. That was, of coarse, perfectly
erroneous, and having said that, he wiped away
the whole of the first part of these questions, and
oame to the simple question whether, in the events
which had taken place, Weasels or the person who
had obtained a concession from Him to the
minerals and precious stones was the proper party
to sustain that proceeding. That was the sole
question he should have to trouble the Court with.
Mr. Justioe Buchanan : Who is the registered
owner?
Sir T. Upington : Weasels, I believe, my lord. I
think it must be so, and I shall have to admit it.
I shall take it, for the purpose of this pro-
ceeding, that Weasels is the registered owner.
Proceeding, counsel said that the learned judge in
the Court below, in very dearly discussing these
two points, held that the first point advanoed by
the respondents (now the appellants) was unten-
able, and then proceeded to say that he was of
opinion that the applicant Weasels had a dear
right to an interdict against the continuance of the
trespass. Proceeding to the question of whether
Wessels was the proper party to take action, the
learned judge discussed such of the Roman- Dutch
authorities as he was able to refer to, and also
English authorities, and came to the conclusion
that Mr. Wessels had the right to apply for an
interdict, and that it was not necessary to have
before the Court the man Ward, the concession-
aire under Wessels. The learned judge further
said that there had been a subverting of the soil,
and apparently a removal of part of the land. If
the publio digging was allowed to con-
tinue, and indiscriminate working went on,
Mr. Wessels would recover hiB property with the
land subverted, and deteriorated seriously in value.
Now, if that view could be supported it would be
difficult indeed for him (Sir T. Upington) to con-
tend successfully what he was proposing to con-
tend, for if preoious stones and minerals belonging
to Mr. Wessels were removed from the soil, they
being his property, it was a most unfair and im-
proper thing for any man to have done, and the
Court would undoubtedly interfere. But if they
looked at the facts it would seem that WeBsels had
no possession whatever. An agreement was
entered into between Wessels and Ward, under
which Ward was given the refusal of purchase of
the two f armB, on one of which this diamond-mine
was discovered, and here came the question in
regard to Ward's rights. He must ask the Court
to bear in mind that the application was for an
interdict to restrain people from working in the
Premier Mine, and the allegation in Marais'
affidavit was that Wessels was the actual pro-
prietor of these diamonds, and that was the
ground really upon which the application oame
before the Court below. The agreement,
oounsel continued, set forth that the farms should
not be transferred to the purchaser by Weasels
until certain instalments were paid, and that
during the twelve months that Ward had the re-
fusal of the farms he should have the right to
prospect for diamonds or precious stones, and to
open and devdop any mine or mines he might
discover on any portion of the two farms. In the
event of any such mine being opened, Ward agreed
to allot to Wessels, senior, and his heirs, execu-
tors, and assigns, twenty olaims in any such mine.
Now he (Sir T. Upington) said that that was an
absolute disposal of the property in all these
diamonds. As soon as the mine was developed
Wessels was to get twenty olaims marked off, and
that was all.
The Chief Justioe : Then do you contend that if
a person gives the right to A to dig for diamonds that
immediately afterwards all the world may rush in
and do the same ?
Sir T. Upington Said that his contention was that
no one had any claim for an interdict restraining
persons from taking diamonds away except the
person who owned the diamonds and the soil.
The Chief Justioe said that surely it made a
difference to the owner whether A alone oame on
to his ground or whether the whole world came.
The difference to the owner must be very great.
Sir T. Upington said that the question would be
who was in possession of this property supposed to
be damaged. There was no serious allegation, he
believed, that the farm was really damaged.
The Chief Justioe: The mine is part of the
farm.
Sir T. Upington : No doubt of it, but the person
who has a claim is Ward, and not Wessels.
Mr. Justioe Buchanan: But what right have
these persons on this ground ?
Sir T. Upington said he was not asking that
question now. He started by saying he was not
prepared to ask the Court to say his clients had
any legal right there, but at the same time he
contended that Wessels had no right to the farm,
except in so far as his twenty claims were con-
cerned, until Ward's period was at an end. He
had no possession whatever of the Premier Mine,
and no right to step in. Ward was the man.
The Chief Justice said that might be true, and
yet Wessels, as the owner, might be entitled to
prevent anyone else than the concessionaire ooming
on the land and digging for diamonds, even if the
right of winning diamonds for a period had been
given to Ward. But as a fact Ward could only
take suoh diamonds as he might win whilst he held
the farm.
Sir T. Upington said that everything was given,
and Ward could devdop the mine. He coujd
bring 60 ? 000 people into \\.
109
The Chief Justice : Tea, if he oould find 50,000
to go, bat he is only entitled to the diamonds he
may find during his period of occupation.
Sir T. Upington said that they then came te the
point why Ward was not brought forward and
made a party to the present suit. He had
affidavits which showed the trne reason. Ward
had parted with the rights he had obtained under
the concession from Weasels to seme extent,
because one of the present appellants deposed that
permission to dig was given him by a sub-con-
cessionaire.
Mr. Justice Smith : Do Wilson and Hall say
Ward has given them the right to dig ?
Sir T. Upington said that one of the appellants
itated that Welch, a sub-concessionaire from
Ward, gave him the right of digging. There were
actions of a mott important nature pending with
regard to Ward's right to these diamonds. Mr*
Marais' statement that Wessels was the sole
owner of the mine, in face of the agreement with
Ward, was astounding. If Ward had given away
the bulk of his concession, was it not a great hard-
ship that persons who had obtained the right to
dig from sub-concessionaires should be stopped,
pending the settlement of these important actions ?
Mr. Marais had made the remarkable statement
that Wessels was the sole proprietor of this dia-
mondif erons soil, but the agreement to which he
had referred scarcely bore out that statement.
Counsel proceeded to read an agreement made
between Ward and one Caprisius, by which the
latter was given prospecting rights for five months
at the mine, and permission to lay down six
washing-mach hies.
Mr. Justice Smith : It may be that Ward has
exceeded his rights.
Sir T. Upington said that Wessels was in
Wellington, and Ward left in sole control. Disputes
arose between Ward and persons who stated that
they held rights from sub-cencessionaires. Wessels
they knew nothing about ; Ward was in possession.
He contended that Ward should at any rate have
been made a party to that proceeding.
Mr. Justice Smith : Do you oontend that Ward
has the sole right to the property ?
Sir T. Upington : I say he has, Wessels having
taken the action he has. Proceeding, Counsel
said that if a man, as was done under this
agreement, parted with the possession of his
property for a certain period to another person,
and a stranger trespassed upon that property, the
occupier would deal with the trespasser. He
asked the Court also to remember that in the case
of Hall he stated positively that Welch, a sub-
concessionaire from Ward, had given him the right
to dig.
The Chief Justice : If Ward had brought the
action you would have said it ought to have been
brought by Welch,
Sir T. Upington said that supposing in this
case it were shown that Wilson had a right to go
there, as between himself and Ward, oould Wessels
go beyond Ward's right ? The point he wanted
to get at was whether Ward's possession was such
as to necessitate his being a party to that action.
If the Court were to decide that there was a real
injury to the reversion, as it was sometimes
called, the case would then be on quite a different
basis.
The Chief Justice : But can there be a moment's
doubt that there is an injury done to Wessels ?
The fact that Ward can take as many diamonds
as he can win does not allow others to come in.
Sir T. Upington said that if Ward, having the
right to go in, gave any number of people sub-
concessions, he could not bring any proceeding by
way of interdict restraining the persons to whom
he had granted such permission.
The Chief Justice said that the limited number
of people to whom Ward would grant concessions
would net represent as many as if anybody were
allowed to rush in.
Sir T. Upington said that the agreement was now
running. In the meantime Ward had absolute
oontrol, and the question was, whether Mr. Wessels
could obtain an interdict which shut up the whole
thing, notwithstanding all that Ward had done,
and put an end to the very valuable rights of all
these sub-concessionaires.
The Chief Justice, in giving judgment, said that
the case was so very plain that it was really un-
necessary to hear counsel for the respondent. Sir
Thomas Upington had with great oandour admitted
that, in view of the clear provision of the 76th
section of Act 19 of 1883, he oould not maintain
that the appellants in this case were entitled to dig
for diamonds upon the property in question until,
at all events, the mine had been proclaimed as a
mine by the Government, but looking at the affi-
davits before the Court that was not the view
which the appellants had up to the present time
strenuously maintained. In Mr. Wilson's affi-
davit it was set f erth that all the conditions neoes-
sary for the proclamation of the mine as a public
digging had been complied with, and that the mine
had been worked and dealt with as a public dig-
ging within the meaning of the Act of 1883. Mr.
Hall, in his affidavit, said that he had entered the
mine and pegged off a claim therein, but was
justified on account of the owner or concessionaire
having allowed the mine to be worked as a public
mine, by allowing mere than the number of
persons required by the Act to settle thereon. Mr.
Hall further deposed that the mine was in all
respects worked as a public digging, although not
formally proclaimed as such. But the most im-
portant provision of the 76th section of the Act
of 1883 was entirely lost sight of. It was that the
amount of licence meney, rent, or royalty to be
110
paid for every olaim should be fixed by the owner
of the mine, and he (the Chief Justice ) failed to
see what right even the Government would have
to proclaim this as a public digging or mine, until
the owner had fixed upon an amount of licence
money, rent, or royalty to be paid for eaeh claim
and if the Government had not a right a fortiori,
these appellants had not the right to go upon
private property without the consent of the
owners. Indeed, the admission of Sir Thomas
Upington clearly showed they had no right
whatever, but the technical objection was
now relied on that the wrong persons
were sued, and that the owner of the property was
not to be allowed to obtain an interdict to re-
strain people from trespassing on private property,
because he had given the option of purchase to
Mr. Ward. That was certainly one of the most
extraordinary contentions ever made in a court of
justice. They had hitherto looked upon the owner
of the land as the person to warn off all persons
wrongfully on that land. It might be quite true
that the owner must show that his reversion
was injured. He (the Chief Justice) was of
opinion that the respondents reversion, whatever
that might be, had been injured by the occupation
of the appellants in this case. The owner had
given oertain rights to Mr. Ward, to dig for
diamonds during the time he had for exercising
bis option of purchase, and Mr. Ward might win
many diamonds, and allow others to do so, but that
was very different from allowing the whole world
to go in and win many more diamonds than
Mr. Ward er his sub-concessionaires. It appeared
quite dear that the judgment was right, and to
some extent even more beneficial to the present
appellants than it might have been, because the in-
terdict was granted pending an action to be insti-
tuted. The Court would be quite justified in
saying that before any action was brought it
would order persons who had forcibly taken pos-
session of private property to cease working until
the question was decided. However, there was
now no appeal against that portion of the judg-
ment, and all the Court could do was to dismiss
the appeal with ooBts.
Mr. Justice Smith said he was entirely of the
same opinion.
Mr. Justice Buchanan remarked that he did net
think the case was arguable.
The decision of the Court below was therefore
upheld.
[Attorneys for the Appellants Messrs. Van Zyl
& BuiBsinne, for the Respondent Messrs. Keid &
Nephew.]
In re THE GAPE CENTRAL RAILWAYS.
Company in liquidation — Sale of Company's
assets — Confirmation.
Mr. Schreiner appeared on behalf of Sir T. C.
Boanlen, official liquidator of the Cape Central
Railways ; and Sir T. Upington, Q.C., with Mr.
Juta, represented Mr. John Walker, a oreditor of
the company.
This was an application for a final order of
Court sanctioning the sale of the Cape Central
Railways. An order was granted on the 13th
April sanctioning the sale of the line, on condition
that the purchase money was lodged in the Bank
of England in tbe joint names ef the effioial
liquidator in England and the official liquidator
here. A slight variation of the first order was
subsequently made, and now it was suggested, be-
cause of the state of the English money market,
the purchaser hesitated to oomplete the trans-
action, taking up the position that he objected to
the slightest variation of the order of the Court.
The debts of the company in the Cape Colony were
£2,187 12s. lid., including the sum awarded to Mr.
Walker in a recent action. The official liquidator,
oounsel stated, had £7,300 in the Standard Bank,
which was more than sufficient to meet all
claims, and as the contract for the sale of the
line would lapse on the 28th May the Court waa
now asked to sanction the sale of the line in accord-
ance with the original order.
Sir T. Upington said that the £7,800 would not
cover all the claims in the Colony. No leas than
£10,000 ef debentures were held at the Cape. If,
however, Sir T. Scanlen would undertake to hold
the money now in the Standard Bank he would be
perfectly satisfied.
Mr. Schreiner said that such an offer had already
been made.
The Court granted the order as prayed, and de-
clined to make any order as to costs.
SUPREME COURT.
TUESDAY, MAY, 19.
[Before the Chief Justice (Sir J. H. DE
VILLTER8), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
GROOM AND WHITE V. THE BECHU AN ALAND
EXPLORATION COMPANY, LIMITED.
Mr. Searle and Mr. Shiel appeared for the
plaintiffs, and Sir T. Upington, Q.C., and Mr
Schreiner for the defendant company.
This case, which was partly heard last tern)
came on for further hearing.
iii
Sir T. Upington applied for the pogtponement
of the cue until the arrival in Cape Town of Mr.
Harman, an important witness.
Mr. 8earle opposed the postponement.
The Court, after hearing counsel, postponed the
oate till Monday, the 1st June, the defendant com-
pany to pay the costs occasioned by the postpone-
ment.
PHILLIPS V. PHILLIPS.
Mr. Giddy appeared for the plaintiff (the hus-
band) ; the defendant in default.
The further hearing of this case, which was
partly disposed of last term, was resumed.
The Court, after hearing counsel, granted a
decree for restitution of conjugal rights, failing
which the defendant to show cause on the 1st
August why a decree of divorce should not be
granted.
VILLA V. VILLA.
Mr, Juta appeared for the plaintiff (the
husband) ; the defendant in default.
This was an action for divorce instituted by
Guaieppe Villa against his wife by reason of her
adultery with certain persons unknown. The parties
were married in Cape Town in December, 1889,
and some months after the marriage the plaintiff
began to entertain doubts as to his wife's fidelity.
In November, 1890, Villa and his wife separated,
aid subsequently in December he found her living
u a house of ill-fame in Cape Town.
Evidence having been given as to the suspicious
conduct of the defendant, the Court granted a
decree of divorce, the defendant to forfeit all
benefits under the community.
BUSSOUW V. BU880UW.
On the motion of Mr. Castens, the Court made
absolute the rule nisi dissolving the marriage sub-
sisting between the parties, and giving the mother
(the plaintiff) the custody of the children.
IH BE THE ZOUTBPAN8BEBG PALMIETFONTEIN
ESTATE COMPANY.
Company — Bank in liquidation — Proof of
debts allowed notwithstanding that period
for proof had expired.
On the application of Mr. Tredgold, the Court
granted the above-named oempany leave to file a
proof of debt far the sum of £477 8s. 6d. against
the Paarl Bask (in liquidation), notwithstanding
that the period fox such proof expired on the 81st
March last.
OAMPAAN V. OAMPAAN.
Mr. Jones moved to make absolute the rule nisi
for the dissolution of the marriage subsisting
between the parties.
The Court made absolute the rule am, with oosts
against the husband.
HOPKINS V. HOPKINS.
On the motion of Mr. Sohreiner, the Court
granted further extension of the rule nisi
admitting the applicant to sue her husband for
restitution of conjugal rights by edictal citation.
PETITION OF MICHAEL CUNNINGHAM.
On the application of Mr. Graham, the Court
made absolute the rule nisi for the cancellation of
a certain deed of transfer of portion of lot No. 124,
Rufane Vale, in Port Elizabeth, in favour of
James Maloney.
IN THE ESTATE OF THE LATE JOHN BROWN
EVANS.
Trustee, appointment of, to administer
trust fund constituted by antenuptial
contract.
Mr. Searle appeared for the petitioner, the
widow of the late J. 8. Bvans, and prayed for the
appointment of a trustee to administer the trust
fund arising ant of a settlement made in the ante-
nuptial contract between Edith Mary Partridge
(the petitioner) and deceased.
It appeared from affidavit that petitioner was
married to the late Mr. Bvans in February, 1884.
By an ante-nuptial oontract the sum of £2,100 was
settled upon the wife and was made a first charge
en the estate. There were funds in hands to meet
the claim, but no trustee had been appointed under
the will.
The Court granted the order as prayed for, and
appointed the person named in the petition
trustee.
BBUNNEB V. DE VILLIEBS.
Attachment of portion of inheritance to
satisfy judgment debt.
Mr. Juta moved, on behalf of applicant, for an
order authorising the Sheriff to attach so much of
an inheritance devolving upon the respondent, but
at present in the hands of the Master of the
Supreme Court, as will satisfy a judgment debt
and oosts in favour of the applicant.
It appeared that the amount coming to the
respondent was £822 10s., applicant's claim being
for £27 7s. 5d., and the costs of the present
application.
The Court granted the order as prayed for.
ii2
LIND V. VAN DBR VEEN.
Perpetual silence, Decree of.
Where V. had threatened to bring an action
against L. for negligence the Court refused
to issue a decree of perpetual silence against
Y. on the latter's undertaking to proceed
with the action within a reasonable time.
Mr. Searle appeared for the applicant, and Sir
T. Upington, Q.C., and Mr. Juta for the re-
spondent.
This was an application for an order requiring
the respondent to proceed with her action against
the applicant in respect of her claim for the
amount ef loss sustained in investments made on
her behalf, and failing such proceedings being
taken within six weeks, that she might be for ever
debarred from bringing the said action. It
appeared from the affidavits read that the appli-
cant, who is an attorney practising at Oudtshoorn,
had advised the respondent to make money ad-
vances on certain securities whioh it was alleged
had proved worthless, or nearly so. In consequence
of this the respondent had threatened
to institute an action for damages against
the applicant, but up to the present she
had taken no further steps in the matter. The
applicant alleged that the report of this impending
aotion having been freely circulated about the dis-
trict, was injuring him very considerably in his
business as an attorney, and he was anxious that
Mrs. Van der Veen should either be ordered to
bring her action at once, or that a deoree of per-
petual silence should be issued against her. The
respondent, in an answering affidavit, stated that
she could not estimate the damage which she had
sustained until the crops in a certain insolvent
estate had been valued.
Mr. Searle, in supporting the application, con-
tended, on the authority of Van der Linden (pp.
883,426), that the respondent should bring her
aotion within six weeks, or be for ever silent.
Counsel also referred to the cases of " Bergh v.
Smuts" (3 Mens., 683), "Norden v. Kilian and
Stein" (8 Mens., 650), "Campbell v. Douglas"
(1 Searle, 48), and the " Municipality of Worcester
v.DuToit" (2 Juta, 188).
Sir T. Upington, for the respondent, submitted
that so important a decree as that of perpetual
silence should not be ordered merely on the vague
affidavits which the Court had heard.
The Chief Justice remarked that no order would
be made on the present application, but the
respondent must proceed with her aotion at the
next Cirouit Court, costs to abide the event.
THE GAPS OF GOOD HOPE BANK (IN
LIQUIDATION.)
Third Report.
Mr. Schreiner, en behalf . of the official liquida-
dators of the above bank, presented the following
report (third) for the confirmation of the Court :
1. The liquidators herewith submit the first
liquidation accounts of the affairs of the bank
brought down to the 28th February, 1891, being
the last day fixed by the Honourable the Supreme
Court for the filing of claims.
2. The liabilities have been red iced by sets-off
to £2,041,381 17s. Id., as per statement filed here-
with. This amount is subject to further altera-
tions by adjustments of accounts.
8. The total amount of claims proved and
admitted up to 28th February last was £2,019,717
6s. 4d., and on these claims two dividends aggregat-
ing 10s. in the £ have been paid.
4. The amount received on account of the call
of £30 per share up to the 28th February last
is <£264,789 2s. 8d., and including receipts up
to the 30th ultimo, £292,902 6s. lid. There is
every prospect of the original £326,000 being
reached.
6. The liquidators will have sufficient funds at
their disposal to pay a third dividend of 2s. 6d. in
the £ on the 1st June next.
6. The premises and furniture belonging to the
bank in Cape Town and Graaff-Reinet have been
disposed of satisfactorily, viz., the former for
£16,000 and the latter for £2,600.
7. The disbursements attendant on the liquida-
tion of an institution having fourteen places of
business have necessarily been considerable, and
these were further increased by the heavy law
costs forced upon the liquidators in the Transvaal,
in removing the provisional liquidators appointed
in that State and paying the amount fixed by the
High Court as their remuneration. The order of
that Court appointing us sole liquidators in the
Transvaal could not be obtained until 17th
November last, when measures were taken
for reduoing the staffB there, as had previously
been dene with those in the Colony, to the
lowest point consistent with efficiency. This ob-
ject is being steadily kept in view. The branches
at Oudtshoorn, East London, and Queen's Town
have already been closed, and those at Graaff-
Reinet, Graham's Town, and London will be
closed on the 81st instant, and as the liquidation
proceeds other branches will soon follow.
8. With the view of facilitating the disposal of
the great accumulation of books and papers, the
liquidators were authorised by an order of your
honourable Court, dated 13th April, 1891, to
destroy such books and papers of a date prior to
1888 as may be found of no further use.
113
9. At several creditors omitted filing their
claims by the 28th February last, the liquidators
recommend that the time for filing claims be
farther extended to the 31st day of July next.
10. On the 3rd October, 1890, this honourable
Court granted an interdict restraining the Regis-
trars of Deeds in Cape Town, Kimberley, and
King William's Town from passing any transfer or
bonds by any shareholder in the said bank,er from
cancelling any bonds in favour of any shareholder,
or registering any cessions of any bond standing
registered in the name of any shareholder ; also
the Treasurer ef the Colony from registering any
cession of Government debentures or stock regis-
tered in the name of any shareholder in the said
bank, and the Counoils of all Municipalities in
the Colony from registering any cession of
Municipal debentures or stock registered in
the name of any shareholder in the said
bank without the consent in writing of the
official liquidators. The liquidators now propose
that a discharge should be granted by this honour-
able Court from the operation of the said interdict
to all who have paid or satisfied their calls on
shares held by them in the bank, and annex
hereto a list containing the names of shareholders
entitled to receive a discharge, and recommend that
an order which oan be filed with the respective
Registrars of Deeds be granted, discharging them
accordingly.
11. Provisional liquidators were appointed here
on the 23rd September, 1890, and held office till
the 26th March, when the present liquidators took
their place.
A letter herewith annexed has been received
from three of the said liquidators, raising the
question of their remuneration for their services
during that time. The Court is respectfully
requested to consider the matter, and to award
inch sum as may appear to them to be reasonable
for said services.
12. The liquidators now ask the Court :
(1) To confirm the liquidation account sub-
mitted herewith.
(2) To sanction the extension of time for the
filing of claims to the 31st July next.
(3) To grant an order discharging oertain share-
holders from the operation of the interdict of
October 3, 1890.
(4) To fix some remuneration for the provisional
liquidators.
Mr. Schreiner said he did not ask for any order
*t present as to remuneration to liquidators.
The Court confirmed paragraphs 2 and 8 of
tectioa 12, and made the usual order as to publica-
tion.
PIET V. PIET.
On the motion of Mr. Molteno, the rule nisi was
made absolute admitting applicant to sue in forma
pauperis in an action against her husband for divorce
by reason of his adultery.
IN THE INSOLVENT ESTATE OF LOUIS J.
SCHOEMAN.
On the application of Mr. Watermeyer, the
Court made absolute the rule nut for authority to
the Registrar of Deeds to pats transfer of the
farm Galgenbosch, otherwise Drooge Rivier, and
land adjoining, to the purohaser thereof from the
said estate.
PETITION OP WILLIAM WHEELEB.
On the motion of Mr. Molteno, the Court
granted the applicant leave to sue in forma
pauperis in an action against his wife for restitu-
tion of conjugal rights, failing which for divorce.
ABBAHAMSE V. ABBAHAMSE.
On the application of Mr. MoLachlan, the
Court granted a rule nisi calling upon respondent
to show cause why applicant should not be
admitted to sue in forma pauperis in an action for
divorce.
BEOINA V. MASEBI AND BAM8ITSANI.
A.ct 23 of 1879, section 9 — Non-compliance
with terms of section — Conviction quashed.
Mr. Giddy appeared on behalf of the Crown, and
Mr. Juta for the prisoners.
This was an appeal from a sentence of the Resi-
dent Magistrate of Matatiele. It appeared from
the record that the prisoners were convicted under
section 9 of the Vagrancy Act of 1879.
The Court held that the provisions of section 9
had net been complied with, and consequently
quashed the conviction.
BEOINA V. BUSSOUW.
A.ct 20 of 1861, section 10— Transmitting
false telegrams— Telegraph regulations —
Locus pccnitentice — Conviction quashed.
This matter came on for argument on a peint
reserved at the last Circuit Court held at Malmes-
bury.
Mr. Giddy appeared on behalf of the Crown ,
and Mr. Jones for the prisoner.
The prisoner was indicted, and found guilty of
having contravened Act 20 ot 1861, section 10, in
that on the 9th Ootober, 1890, he caused to '
transmitted to Kimberley a etrtain tejr-
ii4
N
message, knowing the same to he false. The only
evidence for the prosecution was that of a clerk in
the Telegraph Department named Morrell.
According to Morrell's evidenoe, the prisoner
handed him a telegraph form with the message
written on it. Shortly afterwards the prisoner
appears to have changed his mind abont sending
the wire, and told Morrell not to despatch it.
Morrell, however, explained to him that, according
to the ruleB of the service, he oonld not return a
message which had been received over the counter,
and consequently the me c sage was sent.
Mr. Jones, on behalf of the prisoner, submitted
that the Postmaster-General had no statutory
power to issue rules of this nature as affecting the
public, and that his action in so doing was ultra
vires. As between himself and his subordinates in
the department, no doubt he had power to make
regulations, but these regulations could not affect
the general public. In any case the prisoner had
exercised his locus pasnitentue, and the message bad
been sent against his wish and instructions.
The Chief Justice, in giving judgment, remarked
that the point reserved was an interesting one.
If the prisoner had knowledge of the regulations
referred to in the argument, then hiB subsequent
repentance would not avail him. There was no
evidence, however, to show that he was aware of
the regulations, and under the circumstances he
was entitled to the benefit of the doubt. He had
exercised his locus pomitentia, as he had a right to
do, and he (the Chief Justice) was of opinion that
the conviction ought to be quashed.
Mr. Justice Smith concurred.
Mr. Justice Buchanan remarked that, in con-
curring with the judgment of the Chief Justice, he
was not to be understood as implying that the
more important point had been decided, namely,
whether a person having handed in a message and
paying for it had the power of subsequently can-
celling the message.
ZAHN V. DU PBKEZ.
Account— Action for balance of Summons
" sufficiently specific"— Exception— Appeal
—Case remitted.
Mr. Schreiner for the appellant, and Mr. Searle
for the respondent.
This was an appeal from a decision of the Resi-
dent Magistrate of Worcester.
In the case heard before the Magistrate the
appellant, Dr. Zahn, sued the respondent for £10,
medical attendance on Miss Du Preee. The
defendant (present respondent) denied the debt,
v ^and took the exception that the summon was not
specific enough, inasmuch as it did not allege
whictTMiss Du Prees had received medical attend-
ance. The Magistrate upheld the exception and
dismissed the case. From this decision the re-
spondent now appealed.
Mr. Schreiner, in support of the appeal, con-
tended that the Magistrate had erred in not
allowing the plaintiff to make his case, and that
the summons was sufficiently specific.
Mr, Searle, for the respondent, submitted that
the summons was not sufficiently specific, and that
the plaintiff ought at least to have mentioned Miss
Du Preez's christian name. Further, that when
the exception was taken the plaintiff ought either
to have applied to have the summons amended or
to have produced a witness to identify his patient.
Counsel also referred to Act 20 of 1866, section 62,
upon which he mainly relied.
The Chief Justice, in delivering judgment, re-
marked that the Magistrate had clearly erred in
upholding the exception. The appeal would be
allowed and the case remitted to be decided on its
merits.
[Attorneys for the Applicant C. C. Silberbauer,
for the Respondent Messrs. Fair bridged Arderne.]
SUPREME COURT.
WEDNESDAY, MAT 20.
[Before the Chief Justioe (Sir J. H. DB
Villiees), Mr. Justioe SMITH, and Mr.
Justice Buchanan.]
BEGINA V. PIET ABENDS.
Incest— A man who marries or has carnal
knowledge of his illegitimate daughter
commits the crime of Incest.*
Mr. Giddy appeared for the Crown ; the prisoner
was not represented by counsel.
This case came on for argument yesterday (May
* A view of the English Law on this subject may
not prove uninteresting. I quote from Stephen—
Dig. Crim. Law, p. 118.— Ed.
"Every person who commits incest, adultery, forni-
cation, or any other deadly sin (not punishable at
Common Law), is liable upon conviction thereof in an
ecclesiastical Court to be directed to do penance, and to
be excommunicated, and to be imprisoned for such
term not exceeding six months as the Court pronoun-
cing the sentence of excommunication may direct."
18 Edw. I., c 4 ; 63 Geo. 111., c 127, §§ 1-3 ; and see
Phillimore's Eccl. Law, 1,061, 1,442 : also PkilUmore v.
Machon, 1 P.D. 461 ; Co. Litt. 96 b. Incest though not
mentioned in the statute " Circumspecttagatis," is the
only offence which in these days is ever prosecuted
under the law here stated. Such a prosecution occurred
within the last few years in the Bishop of Chichester's
Ceurt. See 8, Hist. Cr. Law 8M— 4S8j
115
19) on a point reserved by his lordship Mr.
Justice Buchanan at the last Circuit Court held at
Beaufort West. The prisoner was indicted for the
crime of incest, in that he had had carnal know-
ledge of his illegitimate daughter, the point re-
served being a whether under the circumstances
the prisoner could be oonvicttd of that crime, and
whether in fact carnal knowledge on the part of a
man with his illegitimate daughter did amount to
incest.*' The jury brought in a special verdict, and
found that the girl was the daughter of the
prisoner, although there was no evidence that he
had been married to the girl's mother, and that he
had had carnal knowledge of the girl.
Mr. Giddy, on behalf of the Crown, argued at
length that the fact of a man's not having gone
through the form of marriage could not affect the
blood relationship which existed between himself
and a daughter born of him while he was living in
a state of concubinage, and that if a man had
carnal knowledge of his natural child, under such
circumstances he committed the crime of incest.
In support of his contention counsel referred to
Matthseus de Criminibus, "Regina v. K"
(Buch.Repe., 1875, p. 98), and " Regina v. The
Inhabitants of Brighton" (30 LJ., N.S., M.C.,
197).
The Court reserved judgment.
This morning (May 20) the Chief Justice, in
delivering judgment, detailed the facts of the
case, and remarked that very few authorities had
been quoted in argument. After the adjournment
yesterday he had looked up some of the authorities,
and as the main point which they had to decide
was whether a man could marry his
illegitimate daughter the following passage
from Voet (23, 2, 35) bore directly on the point :
tt Nor do marriages appear to be permitted between
a denier and such a relation by blood of the woman
defiled as would, if instead of illicit intercourse
there had been marriage, have been prevented
from marrying him on account of affinity arising
out of such marriage, nor vice versa between the
woman and a similar relation by birth of the
denier ; provided only there were undoubted proof
of the illicit intercourse. At any rate it is certain
that blood relationship arising not only from law-
ful marriage but from illicit intercourse is an im-
pediment to marriage (Dig. 23, 2, 54). It makes
no difference whether the relationship arises from
marriage or not, for a man is prohibited from
marrying his sister who has been begotten of a
prostitute. ... All this quite agrees with t he
modern view that marriages are condemned where
there is any relationship arising out of illicit
intercourse (Carpz Def. For, p. 4, c. 23, def
10), and this view is clearly adopted by
the Bchtreg Court of the Staten-Generaal,
18th March, 1666, art. 68-66 (2 Plao. B. 2,441)."
In view of this authority he (the Chief Justice)
was clearly of opinion that by our law the
marriage of a man with his illegitimate daughter
was forbidden. According to Voet, there must be
clear proof that blood relationship does exist. In
the present case the jury had found that the girl
was the prisoner's daughter, and that he had
carnal knowledge of her. Such being the case, the
prisoner was rightly convicted. The point re-
served must be decided against the prisoner, and
the conviction upheld.
Mr. Justice Smith concurred.
Mr. Justice Buchanan remarked that he had
reserved the point at the trial of the case at the
last Circuit Court held at Beaufort West. He
knew that English common law did not recognise
the crime of incest, and was under the impression
that by Scotch law the circumstances in this case
would not have been punished. The reference to
Allison (made by Mr. Justice Smith) showed that
under Scottish law the prisoner would not have
been punished. The only Dutch authority he
could refer to on Circuit was Van der Linden, who
only dealt with the subjeot in general terms, and
the reference in Voet was only clear where there
was blood relationship, and not affinity. Prisoner
had been undergoing his punishment sinoe the
passing of sentence.
MYEKULU V. 8IMKIN8.
Attachment — Ille?al — Messenger of Court —
Act 20 of 1856, section 53 — Magistrates'
Court Regulations — Rule 58 — Interpleader
— Action — Appeal .
Mr. Sohreiner appeared for the appellant.
This case, which was argued yesterday (May
19), was an appeal from a decision of the Resident
Magistrate of Queen's Town. The appellant (the
plaintiff in the Court below) had sued the re-
spondent for the delivery of oertain three head of
oattle unlawfully attached by the defendant, the
messenger of the Court, in satisfaction of a judg-
ment which had been obtained against the appel-
lant's son, Benjamin Myekulu, in the Resident
Magistrate's Court of Wodehouse, and also for £6
damages in consequence of the illegal seizure and
detention. The Magistrate dismissed the case on
the grounds that the defendant, the messenger of
the Court (through his deputy), had acted bona
fide, and had not been guilty of negligence in seiz-
ing the cattle in question. From this judgment
the plaintiff now appealed.
Mr. Schreiner, in support of the appeal, con-
tended that there had been gross neghgenoe on the
part of the respondent, inasmuch as the appellant
had pointed out to the former that the cattle
which were being seized were his property, and.
116
not his son Benjamin's. Counsel further con-
tended that when the question of ownership by a
third party was raised, the Magistrate ought to
hare ordered interpleader proceedings—" Lonw v.
Fife." (2 Juta, 65). Counsel also referred to Act
20 of 1856, section 53, and directed the attention
ef the Court te the English law on the subject of
the liability of sheriffs in oases similar to the one
under consideration, referring more particularly
to " Addison on Torts," 4th ed., p. 650, and to the
following oases : " Jarmain v. Hooper " (6 M. <fe
Gr., 847), " Dawson v. Wood " (8 Taunton, 260),
"Glasspoole v. Young" (9 B. <fe C.,701), and
" Olivier v. Keating" (Foord's Reports, p. 102).
The Court reserved judgment.
To-day (May 20) the Chief Justice delivered
the following judgment : He said he was dearly
of opinion that the Magistrate had erred. The
defendant, the messenger of the Court, attached
certain property belonging to the plaintiff, having
at the time had notioe that the cattle were claimed
on behalf of the plaintiff. Notwithstanding this
notice, he proceeded with his attachment, and gave
notioe to the Magistrate. Now, the duty of the
Magistrate on receiving the report of the messen-
ger was, under the 53rd section of Act 20 of 1856,
and the 68th rule of Magistrates* Court
Rules, to have issued an interpleader sum-
mons to decide the question of ownership. If
such a summons had been issued, the effect
would have been to stay all proceedings
which might be brought in that or any
other court against the messenger for illegal
attachment. Instead, however, of going on with
interpleader proceedings, they were dropped on
account of a notice given by plaintiff that he in-
tended to bring an action. This was where the
Magistrate and the messenger had erred. The mes-
senger ought t > have put the law in motion, and
the Magistrate to have issued the interpleader
quite independently of any action being brought
by the plaintiff. If the interpleader had pro-
ceeded this particular action would have been
stayed, and all costs incurred would have had to
be paid by the plaintiff. But the interpleader not
having been issued, the plaintiff was justified in
proceeding with his action against the defendant,
and entitled to judgment, inasmuch as it was
quite clear that the cattle belonged to him and not
to the judgment debtor. The Magistrate there-
fore erred in not giving judgment for the plaintiff.
He ought to have given judgment for the delivery
of the cattle or their value, and for such damages
as he might find the plaintiff had sustained. The
Court were of opinion that no serious damage had
been sustained by the appellant, and that 10s.
would be sufficient damages under the circum-
stances. The judgment ought, however, to be
altered to one of judgment for the plaintiff for
re-delivery of the cattle or their value (£15) and
10s. damages, with costs in this Court and in the
Court below. Practically the appeal only came en
the question of costs, as Mr. Sohreiner had admitted
that the cattle were delivered after judgment.
[Attorneys for the Appellant Messrs. Soanlen &
Syfret].
PBEI88 V. OLUCKMAN.
Waggons — Contract to make — Delivery —
Acceptance — Workmanship — Action.
Mr. Juta and Mr. Jones appeared for the plain-
tiff, and Mr. Sohreiner and Mr. Thome for the
defendant.
This was an aotion instituted by the plaintiff, a
wagonmaker of Robertson, against the defendant,
a trader of the same place, for the sum of £242
14s. lOd. with interest a tempore mora. It ap-
peared from the declaration that on the 18th
Deoember, 1 889, the parties entered into an agree-
ment by which the plaintiff was to make for the
defendant as many wagons as he could during a
period of one year, reckoned from February,
1890, the defendant to supply the materials and
the plaintiff to receive £30 for eich wagon. Acting
under this agreement the plaintiff made thirteen
wagons, of five of which the defendant accepted
delivery, and paid plaintiff the sum of £190. The
other eight wagonB defendant refused to accept
on the grounds that they had not been
turned out in a good and workman-
like manner. Plaintiff, in addition to the
balance of account due in respect of the wagons,
namely, £200, claimed the sum of £42 14s. lOd. for
work done and money and materials supplied, either
to the defendant or to his duly-authorised agent.
The defendant, in his plea, denied that the wagons
had been completed in a proper and workmanlike
manner, in accordance with the terms of the con-
tract, and alleged that the cost of completing the
work would amount te £80. Defendant further
alleged that he had hired the services of the
plaintiff to make the wagons in question out of the
material supplied by him (defendant), and that he
had actually paid plaintiff £202, and not £190, as
plaintiff stated. Defendant also counter-claimed
for the sum of £80.
Upon these facts and pleadings issue was joined.
Mr. B. Preiss, the plaintiff, examined by Mr.
Juta, detailed the circumstances connected with
the making of the contract, and stated that the
wagons were made in a workmanlike manner, and
were as good as could be expected, considering the
inferior material, namely, green wood, with which
He had been supplied by the defendant. The
woodwork of the wagons had shrunk in some
places, and a few of .the tires were loose, but this
117
wm partly due to the long time the wagens had
been exposed to the sun and rain.
Gross-examined by Mr. Schreiner, the witness
itated that he had no recollection of having seen
in account in Mr. Gilliers's office, nor did he
remember entering at all into the question of
accounts. Defendant had done very well out of
the five wagons which he took to the Free State,
some of them having been sold at prices varying
from £136 to £ 150. Defendant would have taken
the other eight wagons if he (witness) had con-
sented to give 'him three months' credit. In
January the wagons were as good as they could be,
considering that they had been made of green
wood. The wheels that were not exposed to the
sun were quite good still. He knew a
Mr. During, a wagonmaker residing in Robert-
son, but he did not know what
opinion he had formed of his (plaintiff's) work ;
but this much he did know, that it was
very easy for one man to find fault with another
man's work. Since January the wagons had got
into bad condition. The wings had been properly
made and were about three inches from the
wheels. The defendant and Gilliers thoroughly
examined the wagons, but the latter came with
the intention of finding fault bo that legal pro-
ceedings should result.
Re-examined by Mr. Juta: Green wood lonly
costs about half the price of well-seasoned wood.
Some of the tires supplied were short and he had
to lengthen them. Wings were made of various
breadths by different wagonmakers.
The correspondence which had passed between
the parties was then read by Mr. Juti and put in.
The hearing of the evidenoe had not concluded
when the Court adjourned.
: COURT,
THURSDAY, MAY 21.
Before the Chief Justice (Sir J. H. DE
VlLLIEBS), Mr. Justice SMITH, and Mr.
Justice Buchanan.
PBEISS V. GLUCKMAN.
The farther hearing of this case was resumed
this morning, the plaintiff being represented as
before by Mr. Juta and Mr. Jones, and the
defendant by Mr. Schreiner and Mr. Thome.
Mr. William Segar, a wagonmaker, residing in
Robertson, examined by Mr. Schreiner, stated that
in his opinion the wagons had not been turned out
in a workmanlike manner. He had carefully
examined the wagons, and he did not think that,
in their present condition, they were saleable. He
would be very sorry to turn out such specimens
of work from his shop. The spokes were loose,
and the wheels generally were in such bad condition
that it would be impossible to take the wagons on
a long jeurney. He thought that on an average
the cost of putting each wagon in proper condition
would be from £8 to £10. He personally would
not undertake to put them in saleable condition
for less than £80
Cross-examined by Mr. Juta : He learned his
trade in England. He did not work at it after his
arrival in the Colony, but during the past two years
he had been working as a wagonmaker. He was
not an architect, and was not aware that he was
known as " the architect " in Robertson. Archi-
tects do not serve an apprenticeship. [ Mr. Juta :
No ; I suppose they are born, like poets.] He
(witness) had seen the wagons in January last, and
in some respects he thought they had improved
since that time. The wings were about an inch
from the wheels. If they had been properly made
they ought to have been at least four inches
distant.
In answer to the Court, the witness stated that
he had examined the wagons at the request of the
defendant, and that the plaintiff was in his shop at
the time.
Several other witnesses were called, and they all
agreed with Mr. Segar that the wagons had been
badly made, and were at present in a wretched
condition.
The plaintiff, on being recalled by the Court,
stated that the wheels were painted by men em-
ployed by the defendant, who at that time raised
no objection to the quality of the work.
The defendant, however, on being recalled,
denied this statement.
After hearing counsel, the Court gave judgment
for the plaintiff for £190 and costs.
[Attorneys for the plaintiff Messrs. Findlay A
Tait, for the defendant Messrs. Van Zyl &
Buissinne.]
PROVISIONAL ROLL.
ESTATE ROBERTSON AND BAIN V. DU PLESSII.
On the motion of Mr. Schreiner, provisional
sentence wsb granted on a promissory note for
£26 9s. 7d., payable at the Western Province Bank,
Paarl.
BOABD OF EXECUTORS V. MALAN.
On the application of Mr. Molteno, provisional
sentence was granted for £18, interest on a mort-
gage bond for £600, and for £6 7s., fire insurance
premiums paid by plaintiff.
118
HIRST V. MULLEB, SMIDT AND CO.
Mr. Molteno applied for discharge of the pro-
visional order for sequestration, as the parties had
arrived at a settlement.— Discharge granted.
UYS V. BAARTMAN.
Provisional sentence — Liquid document —
Every document upon which provisional
sentence is prayed must be stamped.
Mr. Juta moved for provisional sentence for
£200 on a lease of property situated in the Trans-
vaal.
Counsel directed the attention of the Court to
the fact that the lease was not stamped, inasmuch
as it had been executed in the Free State.
The Chief Justice observed that every liquid
document upon which provisional sentence was
prayed should be stamped. The necessary 5s.
stamp having been affixed, the Court granted pro-
visional sentence as prayed for.
THE UNION BANK, IN LIQUIDATION V. UTS.
Provisional sentence — Promissory Motes —
Cession — Defence — Fraud.
Mr. Sohreiner applied for provisional sentence
•n two promissory notes, one for £72 15s., and the
other for £155, passed in favour of G. H. Moller
and ceded by him to the Union Bank.
The defendant appeared to oppose provisional
sentence and said that he did not owe the Union
Bank anything. Defendant, however, admitted
his signature on the notes, but said that Moller
deceived him. He ed Moller £75, but the note
for £155 had been filled in after he had signed it.
The Chief Justice, addressing the defendant,
said that he had better go to the Attorney
General, and lay his oase before him.
Mr. Schreinor pointed out to the Court that the
statement made by the defendant with regard to
Moller had already been the subject of magisterial
investigation, and that the record had been sent to
the Attorney-General.
The Chief Justice : And was Moller not com-
mitted for trial ?
Mr. Sohreiner : That is my opinioo, my lord.
The Chief Justice : If the defendant's statement
is true I am surprised that Moller has not been
committed for trial.
Mi. Graham. said that, in justice to Mr. Moller,
he might state that the charges made against Mr.
Moller had been fully inquired into, and they in-
cluded the present statement made by defendant.
The Chief Justice : That is no re son why he
should not again go to the Attorney-General.
The Chief Justice then told the defendant that
the Court could not assist him; he had
signed the notes in favour of Moller, and on the
strength of his signature the bank had advanced
money, and was now entitled to judgment.
Provisional sentence was granted as prayed for.
S.A. LIFE ASSURANCE SOCIETY V. HARTINGH.
On the motion of Mr. Thorne, provisional sen-
tence was granted on a mortgage bond for £1,300,
less £300 paid on account, with interest on £1,000,
less £10 paid on account; property declared
executable.
S.A. LIFE ASSURANCE SOCIETY V. MULLER.
On the application of Mr. Thorne, provisional
sentenoe was granted on a mortgage bond for £ 10O ;
property declared executable.
SLUITEB Y. MALAN.
On the motion of Mr Juta, provisional sentence
was granted on £42 8s. 6d., money advanced.
STEYTLER V. COHEN.
On the application of Mr. Jones, provisional
sentence was granted for £153 4s. 6d., balance of
account.
VAN BELOW V. TIENGO— DUNCAN V. TIENGO.
Attachment — Postal drafts — Rule nuri
operating as provisional attachment.
Mr. Sohreiner presented the petitions of these
applicants, and prayed that certain postal drafts
recently purchased by the defendant, and
supposed to be in possession of his wife, might
be attached in satisfaction of certain claims which
the applicants had against the defendant.
It appears that the defendant, who is an
Italian, had until quite recently been a contractor
on the railway. Some Bhort time ago he realised
all his effects, and came down to Cape Town under
an assumed name, with the intention of leaving
the Colony for Italy without having paid his
debts.
The Court, after hearing counsel, granted a rule
nisi, returnable on Wednesday next, calling upon
the defendent to show cause why the postal drafts
should not be attached by the Sheriff to abide the
further order of the Court. The rule to operate
as a provisional attachment.
lie
LBVATTB V. LEVATTE.
Mr. McLachlan appeared for the plaintiff ; the
defendant in person.
This was an action for divorce instituted by Mr.
John Levatte, of the Salt River Works, against
his wife by reason of her adultery. The parties
hare been separated for the last two years.
Dr. J. Hewitt, examined by Mr. McLachlan,
stated that he knew the defendant, and had
attended her in her confinement about four weeks
ago, when she was delivered of twins.
The plaintiff then entered the box, and detailed
certain circumstances connected with his wife's
infidelity.
The Court, after patiently listening to evidence
of a very trying character, granted a deoree of
divorce, with custody of the two children of the
marriage.
SUPREME COURT.
FRIDAY, HAY 22.
[Before the Chief Justice (Sir J. H. DB Villiers,
Mr. Justice SMITH, and Mr. Justice
Buchanan.]
the union bank, in liquidation v. uts
Mr. Schreiner said that with regard to this
matter, which was before the Court yesterday, he
found that he had been in error in stating that
Mr. Muller had not been committed for trial.
The Chief Justice : If that is so, there is no
occasion to go to the Attorney-General, but it
occurred to me yesterday that possibly Mr. Uys
could produce further evidence. I did not for a
moment assume that the Magistrate or the
Attorney-General had acted improperly.
The Attorney -General remarked that the
evidence taken at the preliminary examination
mid been laid before him, and after thoroughly
sifting it and the facts elicited in cross-examination,
he did not feel justified in proceeding further
with the case. But if Mr. Uys could produce
any further evidence it would receive his (the
Attorney-General's) careful attention.
15 BE THE OMARUBU G.M. COMPANY, LIMITED.
Winding-up Act- No. 12 of 1868— Applic-
ation to be placed under operation of.
Mr. Juta, on behalf of the directors of the
above-named company, moved for an order plaoing
thecmpany under the operation of the Winding-
up Act
It appeared from an affidavit, sworn to by Mr.
L. J. Oauvin, that the company were indebted to
Messrs. Anderson & M orison in the sum of £200,
being the amount of a judgment, together with
taxed costs on same, and if this amount were paid
the other creditors of the company would be
seriously prejudiced. Efforts had been made to
effect a compromise with Messrs. Anderson <fc
Murison, but they had failed. In consequence of
this a resolution had been passed that the oem-
pany should go into liquidation.
At this stage of the proceedings Mr. Webber
moved, on behalf of Messrs. Anderson & Murison,
for an order making absolute the rule nisi restrain-
ing the official liquidators of the Cape of Good
Hope Bank from paying out to the Omaruru Gold-
mining Company, or to any person other than the
Sheriff, any dividend or funds awarded to the com-
pany, in order 'that such funds might be applied in
satisfaction of a judgment obtained by the
applicants.
The Chief Justice remarked that if the rule
were made absolute that would not give the appli-
cants priority after the company had gone into
liquidation. No order would be made on the latter
application, but on analogy to proceedings in in-
solvency the applicants would get their ooste.
The Court granted the first application
and appointed Mr. B. R Syfret official
liquidator, at the same time conferring upon him
the powers given by the 16th section of the Act.
The liquidator to find security to the satisf action
of the Master in the sum of £500.
BEOINA V. LOGAN.
Railway Restaurant licence — Act 44 of 1885,
section 5 — Contravention — Conviction —
Appeal.
Sir Thomas Upington, Q.C., and Mr. Schreiner
appeared for the appellant, Mr. J. D. Lagan ; and
the Attorney-General (Mr. Innes, Q.C.) appeared
for the Crown.
This was an appeal from a decision of the High
Court at Kimberley, confirming a conviction of the
appellant upon a oharge of contravening section 6
of Act 44 of 1885, in that he did on Sunday, the
14th December, 1890, at Kimberley, sell liquor to
one Wallis, a person to whom he was not by his
licence authorised to sell. The record in the case
having been read, and also the reasons of the
learned judge in the Court below for his judg-
ment,
Sir T. Upington said that it would be found that
a good deal would turn upon the form of the
licence which was issued to the appellant, and he
would state that the licence was one which allowed
the appellant to sell liquor in any quantity at the
railway-station, on any day, within a reasonable
120
time before and after the arrival or departure of
trains. It was a licence which differed
in form from the ordinary licence
issued to retailers under the Act of 1883,
in which it was rot specifically mentioned.
After reading the Act, counsel went on to state
that the licence was issued upon a certificate
given by the Commissioner of Public Works, and
that it was specially made out to allow the holder
to sell to persons within a reasonable time, an
hour before or after the arrival or departure of
trains at the station. That was the difference
between a licence of this sort and a licence
issued in the ordinary manner. There was a
distinction between the ordinary bona-Jide
traveller, who could obtain liquor at any
time, and a person arriving at or depart-
ing from a railway-station, who could not
be interfered with by any condition imposed by
the Commissioner of Crown Lands or anyone else.
He contended that the licence which granted per-
mission to sell liquor within a reasonable time before
or after the arrival or departure of trains, gave the
holder the right to sell to any person within that
period, not travellers only, but also their
friends. To the traveller himself liquor could be
supplied from morning until night, but he
submitted that the persons accompanying
him to the station could also be
entertained within common-sense limits. With
all respect to the learned Judge, it struck
him that his lordship's argument was unsound,
because had this been an ordinary retail licence,
as his lordship regarded it, the holder could not
have sold on Sunday at all, because ordinary
Sunday privileges were abolished.
Mr. Schreiner followed on the same side, and
quoted the case of '* The Queen v. Dam " (3
Juta, p. 63). He contended that in the present
licence there was absolutely no limitation as to
persons, though there was limitation as to time.
If the decision were upheld the Court must come
to the conclusion that the appellant could sell to
one class of persons on week-days but was debarred
from selling to the same class on Sundays. He
submitted that no case had been made out against
the appellant.
The Chief Justice, without calling upon the
Attorney-General, gave judgment. His lordship
said that but for the provisions of the 79th section
of Act 28 of 1883, there could have been no doubt
that the appellant was not entitled, by virtue of
his retail restaurant lioenoe, to sell liquor at all on
Sundays. The licence granted on the certificate of
the Comisaioner of Crown Lands must be
read by the light of the Act which allowed its
issue. They could not assume that the Commis-
sioner intended giving to the licence-holder greater
rights then the Act allowed him to do, or that the
Distributor of Stamps intended to exceed his
duties. Therefore, in his opinion, the words "on
any day " meant any day allowed by the Act.
From the licence itself it was quite clear that it
was a retail licence. The permission to sell
within a reasonable time before or after the
arrival or departure of trains must be read by the
lights of the previous sections of the Act, and in
his opinion :that portion of the sub-section
which prevented the sale of liquor on
Sundays was not intended to be repealed by
the 17th section, and that being so the
railway licence-holder would be justified in selling
on Sunday. Coming to the 79th section, the second
sub-section said that nothing should preclude the
sale at any railway-station of liquor to persona
arriving at, or departing from, such station by rail-
way, and the effect of that provision was to
authorise railway lioence- holders to sell to persona
actually travelling on Sundays. Whilst
for the rest of the week they might sell to anyone
within a reasonable time before or after the
arrival or departure of trains, on Sundays they
might only sell to persons actually travelling.
That being so it was clear that the judgment was
correct, but Mr. Schreiner had raised a technical
point, and "relied upon the case of " Dam and the
Queen." He said that the appellant could not be
proceeded against because he had not strictly
broken the provisions of the section under which
he was proceeded against. It appeared to him,
however, that the present appellant was charged
under the correct clause. He was charged with
selling to a person to whom he was not authorised
to sell by his licence, and, reading the licence by
the light of the Act. he was only authorised to
sell to persons actually travelling on Sundays. He
sold to persons who were not travelling, and there-
fore he was properly charged. The appeal must
be dismissed.
Their lordships conourred.
[Attorneys for the appellant Messrs. Scanlan <fc
Syfret, for the Crown Messrs. Beid A Nephew.]
REHABILITATIONS.
On motions from the Bar, the rehabilitation of
the following insolvents was granted : Benjamin
Israel Nowitz, James Lamb, Marthinus Lambertus
Vogelgezang, Marthinus Edward Johannes Bezuid-
enhoud, and Christian Loedolff.
GENERAL MOTIONS.
PETITION OF MICHAEL C. J. VAN BENSBURO
AND OTHERS.
Mr. Joubert moved for authority to the Regis-
trar of Deeds to correct certain errors in deeds of
transfer relating to the farm Dassen Klip, situated
in the division of Swellendam.
m
The Court granted a rule nisi (returnable on the
last day of term) calling upon all persons inter-
ested to show cause why the errors specified in the
petition should not be rectified by the Registrar of
Deeds.
PETITION OF PHILIDA 8TOPPEL8.
Mr. Graham, en behalf of the petitioner, applied
for leave to sue in forma pauperis in an action
absut to be instituted by her against her husband
for divorce by reason of his adultery.
Referred to counsel for his certificate.
PETITION OF ELIZABETH AT MORE.
Landed property settled by ante-nuptial
contract — Sale — New investment.
On the motion of Mr. Molteno, authority was
given to sell a certain piece of land known as
Bloemf ontein, situated in the district of Kokstad,
settled upon the petitioner by ante-nuptial contract,
in order to invest the proceeds in more convenient
security.
THE GAPE OF GOOD HOPE BANE, (IN
LIQUIDATION.)
Mr. Schrexner presented for the sanction of the
Court certain compromises proposed to be effected
by the official liquidators with shareholders and
debtors ef the bank.
Order granted.
SUPREME COURT.
WEDNESDAY, MAY 27.
[Before the Chief Justice (Sir J. H. DB
Villiebs), Mr. Justice' SMITH, and Mr.
Justice Buchanan].
TON BELOW V. TIENGO.— DUNCAN V. TIBNGO.
In this matter, which was betore the Court on
Thursday last, Mr. Sohreiner, on behalf of the
applicants, moved to make absolute the rule nisi
calling upon the respondent to show cause why
certain postal drafts, to the value of £8C0 and
upwards, sheuld not be attached pending the
hearing of an action for debt about to be instituted
against the respondent.
Sir T. Upington, Q.C., who appeared for Mrs.
Tiengo, drew the attention of the Court to the
fact that the documents whioh had been attached
R
were not postal drafts but merely receipts, and
remarked that unnecessary coats had been in-
curred by attaching worthless pieces of paper
Counsel also commented upon the fact that, before
the attachment, no application had been made to
Mrs. Tiengo for the documents in question, and
observed that had Buch an application been made
considerable expense might have been prevented.
Mr. Schreiner contended that the documents
which had been attached were the vouchers upon
whioh payment would be made, and that they
were the nearest approach to the postal drafts.
Counsel further observed that unless a settlement
were arrived at he might have to ask the Court to
grant an order calling upon the Postmaster-
General to stop payment in England or in Italy,
in whichever country the drafts were made
payable.
The Chief Justice, in giving judgment, remarked
that the application was practically for an attach-
ment ad/undandamjurisdictionem. In the absence
of any explanation from the respondent the rule
nisi would be made absolute. Costs to be costs in
the cause.
SHAEOFSOO Y. VAN NOOBD6N
Pauper— 125 Rule of Court— The Court
refused to make absolute a rule nisi
admitting an applicant to sue in forma
pauperis where from the surrounding
circumstances it appeared probable that
the applicant had or could obtain funds
sufficient to proceed with his action in the
ordinary course.
Mr. Searle appeared for the applicant, and Mr.
Juta for the respondent.
This was an application to make absolute the
rule niit admitting applicant to sue in forma
pauperis in an action about to be instituted by him
for a declaration of rights in certain partnership
matters between the parties.
Mr. Juta read an affidavit sworn to by the re-
spondent, from whioh it appeared that the appli-
cant was a cigarette-maker by trade, and that he
could easily earn 10s. a day in Cape Town as there
was a demand for this kind of skilled labour, and
that under the circumstances the applioant ought
to be able to proceed with his action in the ordinary
way.
Mr. Searle having read an answering affidavit by
applicant, oontended that the test in cases of this
kind was not what an applicant might be worth in
the future, but was his present position such as to
entitle him to ask the Court to be permitted to buc
in forma pauperis. Counsel referred to the case
of Behrens v. Berg (Buch. 1877, p. 188), and drew
122
the attention of the Court to the fact that Van
SToorden in his affidavit had not denied the in-
ability of the applicant to pay the coats of the case.
The Chief Justice, in giving judgment, re-
marked that under the 125th rule of Court pro-
vision was made for the bringing of actions by
paupers upon notice been given to the opposite
side. In cases of this kind it was, however, im-
possible to lay down any hard and fast rule ; each
case must be decided on its merits, and on the sur-
rounding eircumstanoes. In the present case he
was net satisfied that the applicant was a pauper,
and that be would not be able to find funds to
bring his action. The rule would be discharged,
but no order would be made as to coats.
Mr. Justice Smith remarked that aotions of this
kind, tending as they might to promote groundless
litigation,, ought not to be enoouraged.
Mr. Justice Buchanan : In this case no injus-
tice can be done by refusing the application.
WHBELEB Y. WHEELEB.
On the motion of Mr. Molteno, the Court made
absolute the rule nisi admitting the applicant to
sue in forma pauperis in an action about to be
instituted by him against his wife for malicious
desertion and adultery.
ABRAHAMSE V. ABBAHAMSE.
On the application of Mr. McLachlan, the Court
made absolute the rule nisi admitting the applicant
to sue in forma pauperis in an action to be in-
stituted by him against his wife for malicious
desertion and adultery.
THE UNIOH BANK (IN LIQUIDATION) IN BE
SIB T. BGANLBN'S COMPBOMI8E.
Mr. Sohreiner presented for the sanction of the
Court a certain compromise proposed to be effected
by the official liquidators of the bank and Sir T. C.
Scanlen. The compromise in question was an offer
to pay 4s. in the £.
Mr. Juta, on behalf of some shareholders of the
bank, opposed the application.
The Court refused to sanction the compromise,
with costs.
THE D.B. CHURCH V. THE MA8TEB AND THE
SOUTH APBICAN ASSOCIATION.
Will — Mutual — Codicils — Construction —
Creation of poor fund for benefit of needy
relations — Administration —Special Case.
Mr. Sohreiner appeared for the Consistory of the
D,R. Ohuroh ; Sir T. TJpington, Q.O., and Mr.
Giddy for the Master ; and Mr. Juta for the B.A.
Association.
This was a special oase set down for the hearing
of the Court, the plaintiffs being the Consistory of
the D.R. Church, Cape Town, and the de-
fendants, the Master of the Supreme Court and
the South African Association. The main facts of
the caae are as follows : On the 18th March, 1794,
Johannes Henock Neethling and his wife Anna
Catherine Smuts, married in community
of property, executed a mutual will
by which each appointed the other and the
issue of their marriage joint heirs of the first
dying of them, the survivor being appointed the
executor of the first dying. On the 17th April,
1886, the testators executed a codicil, by which
they provided that the amount of certain debts
due to them by their brothers and sisters respec-
tively, and the children of such brothers and sisters
in the firBt degree, should, after the death of both
of them, constitute a poor fund for the benefit of
their needy relatives in the degrees above men-
tioned, the revenues of which fund should be dis-
tributed by their executors with the advice of the
Consistory or Kerkeraad, it being also provided by
the said oodicil that the further disposition
of the capital and revenues of the said funds
should be left to the said Johannes Henock Neeth-
ling, the executrix declaring herself satisfied with
such provision as he should make in the premises.
On the 21st April, 1886, the said J. H. Neethling
executed an instrument by which, inter alia, he
provided as follows with respect to the said fund :
(a) That the amount of the aforesaid debts should
constitute a poor fund for the families of Neeth-
ling and Smuts, from which fund the trustees
thereof should have the power to grant pecuniary ,
assistance to any of his or his wife's relations,
being descendants of his or her father, and
being deserving members of the said families,
at the discretion of the trustees and executors,
and after consultation by them with the Vestry or
Consistory of the Dutch Reformed Church, Cape
Town. (6) Provided for the rendering of yearly
accounts to the Consistory, (c) That for the
trouble of the examination and control of the ao-
oounts and fund, and for acting as arbitrators, with
final power of division and judgment in case of
doubt or question between applicants for relief,
and trustees or executors, or the administrators of
the said fund, a Bum of 200 rix-dollars (or £16
sterling) should be paid annually to the said con-
sistory for the benefit of their poor fund, (d)
That the South African Association should
be the executors and administrators of
the said fund. On the 27th April, 1886, the
testators jointly made a further codicil by
which it was provided, inter alia : That so long as
six joint heirs in the interest should survive, the
heir in the capital should leave the oapital under
128
the control of the testators' executors and adminis-
trators. That when the number of heirs should
be reduced to six, the right of survivorship among
them should cease, and the shares of the deceased
should devolve upon the heir in the capital, and
that one-half of what should come to him, over
sod above his share of inheritance in the interest,
should be employed by him for the support of the
most needy of the grandohildren of either of
testators' parents bearing the name of Neeth-
ling or Smuts. That should the trustees,
executors, or the heir differ in their cal-
culations, the difference should be settled by
arbitration or be submitted by motion to a judge.
Lastly, that in case of difference the said Con-
sistory or Kerkeraad should be arbitrators to settle
such difference de piano without appeal, and should
receive yearly for their trouble, for the benefit of
their poor fund, the sum of 200 rix-dollars (£15),
in the same manner as described in the instrument
of the 21st April, 1836, on account of the testators'
poor fund. The testator died in 1838 and his
wife in 1850. The South African Association,
after the death of the testatrix, became possessed
of the fund constituted by the codicil of the
17th April, 1836, and by the instrument of the 21st
April, 1836, and of the capital fund constituted by
the codicil of the 27th April, 1836, and adminis-
tered the same until 1872 as two separate and
distinct funds, paying to the plaintiffs annually
the sum of £15 in respect of each. In the year
1872 the South African Association paid both the
funds into the Guardians' Fund, and since that
time the Master has refused to recognise the right
of the plaintiffs to more than one annual payment
of £15, and has only paid them that sum yearly.
Mr. Schreiner, on behalf of the plaintiffs, con-
tended that the codicil of the 17th April, 1836, and
the instrument of the 21st April, 1836, and the
codicil of the 27th April, 1886, created twe
separate funds, and that the plaintiffs were entitled
to an annual payment of £15 in respect of each,
besides arrears since the year 1872, when the
funds were paid into the Guardians' Fund.
Mr. Juta, on behalf of the South African
Association, submitted that the association should
not have been made a party to the action, inas-
much as they had paid over the funds in question
to the Master, and had nothing further to do with
the matter.
Sir. T. Upington, for the Master, urged that the
fond intended to be created by the codicil of the
17th April, 1836, and by the instrument of the
21st April, 1836, was merged in the fund created
by the codicil of the 27th April, 1836, and that the
plaintiffs were only entitled to one annual payment
of £15 in respect thereof.
Cwadwvult.
P*tea (May 28).
The Chief Justice asked Mr. Schreiner if he
still contended that it was the duty of the South
African Association to receive and administer the
funds?
Mr. Schreiner said that he was quite willing te
leave the matter in the hands of the Court.
Mr. Juta informed the Court that the first
fund amounted to £8,925, and the second to
£18,534, making a total of £17,459.
The Chief Justice delivered judgment. He said
that they had found that two separate funds had
been created by the instrument of the 2 1 st April and
by the codicil of the 27th April. These funds had
been paid to the Consistory of the Dutch Reformed
Church for a very considerable period, and the Court
ought not now to disturb dispositions whioh had
been so long in force. To the first of these funds,
that constituted by the instrument ef the 21st
April, the plaintiffs were clearly entitled. As to
the second fund, he was of opinion that the
plaintiffs were only entitled te it when they had an
opportunity ef performing some duties in connec-
tion with it. He was informed that there were
only at present five heirs, so that the duties
of the Consistory would now begin, and for
the future they would be entitled to the second
annual payment of £16. The plaintiffs were not
entitled to the arrears from 1872. Costs to oeme
out of the estate, and to be paid out of the two
funds in proportion to their respective amounts.
[Attorneys for the plaintiffs Messrs. van Zyl &
Buissinne, for the Master Messrs. Reid & Nephew,
for the S. A. Association Messrs. Wessels and
Standen.]
SUPREME COURT.
THURSDAY, MAY 28.
[Before the Chief Justice (Sir J. H. DE
VILLIERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
PROVISIONAL ROLL.
WATSON'S EXECUTORS V. BBODBICK.
On the motion of Mr. Graham, provisional
sentence was granted on a mortgage bond for
£200, with interest from 21st March, 1890 ; pre
perty deolared executable.
HARRIS Y. BEHM.
On the application of Mr. Webber, provi-
sional sentence was granted on a mortgage bond
for £260.
124
PRINCE, VINTCBNT AND CO. V. LIZAMOBE.
On the motion of Mr. Searle, the Court granted
a final order for sequestration of defendant's
estate.— The provisional order was granted on the
21st April last.
EXECUTORS ESTATE OF VINK V. UY8.
On the application of Mr. Maskew, this matter
was ordered to stand over till Thursday next, as a
settlement is likely to be arrived at.
VON BELOW V. TIENGOw— DUNCAN V. TIENOO.
In these two matters Mr. Sohreiner moved for
confirmation of the writ of arrest.
The defendant, who appeared in person, acknow-
ledged both the debts, and judgment was given
against him with costs.
ASSIGNEES ESTATE OF MCNAUGHTON V. LOUW.
On the motion of Mr. Webber, provisional sen-
tence was granted on an acknowledgment of debt
for £130.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : J. L. Eras-
mus, B. J. de Vaal, H. J. Adkins, F. P. J. van
Zyl, and Gideon Beukes.
GENERAL MOTIONS.
IN THE ESTATE OF THE LATE HERMINA M.
OVERBEEK.
Maintenance — Application for funds in pos-
session of Master by brother of person
entitled — Locus standi of Applicant —
Power of Attorney — Rule nisi.
Mr. Juta presented the petition of Mr. John
Marquard praying for authority to draw towards
the maintenance of the mother of the deceased a
sum of money (£200) awarded by the executors to
the parents. The petitioner was Mrs. Overbeek's
brother, and the reason stated for the application
not being in Mrs. Overbeek's name was the
delicate state of that lady's health. It appeared
from affidavit that Mr. Overbeek deserted his wife
some years ago, and had not been heard of since
1885, when he was in Melbourne, but his present
whereabouts was unknown.
The Chief Justice remarked that the present
applicant had really no locus standi, and that a
preoedent of this kind could not be established.
JCr. Juta observed that any reference either to
her husband or to business matters had the effect
of greatly disturbing Mrs. Overbeek's mind, and
under these circumstances it was considered
prudent not to ask her to join in the application.
Mr. Justice Smith suggested Mr. Marquard's
getting a power of attorney from his sister to act
for her in the matter, and that the particulars need
not be gone inte in view of the state of her health.
The Court granted a rule nisi calling upon the
husband to show cause, on the 1st August next,
why one-half of the fund in question should not be
paid to applicant for the purposes set forth in the
petition, the Master to pay Mr. Marquard £50 on
security being given, and on production of Mrs.
Overbeek's power of attorney. Publication of the
rule to be made once in the Melbourne Argus,
IN BE MART ARTHUR.
Mr. Searle presented a petition from the Very
Rev. the Dean of Cape Town, praying for the
appointment of a curator ad litem in proceedings
about to be instituted by the Committee of Man-
agement of St. George's Orphanage, to have Miss
Arthur declared of unsound mind and incapable
of looking after her person or property.
The Court after the production of a certificate
from Dr. Falkiner, to the effect that Miss Arthur
was of unsound mind and incapable of looking after
her person and property, granted a rule nisi, re-
turnable on Wednesday next, calling upon Miss
Arthur to show cause why she should not be
declared of unsound mind, a copy of the rule to be
served personally on the alleged lunatic as well as
on, Mr. Molteno whom the Court appointed curator
ad litem.
IN THE ESTATE OF THE LATE 8AMODIEN.
On the application of Mr. Graham, the Court
granted a rule nwt, returnable on the last day of
term, calling upon all persons interested to show
cause why a oertain mortgage bond, passed by the
deceased in favour of one George Apsey, on 26th
July, 1842, hypothecating a lot of ground on the
Wynberg Flats, shall not be cancelled by the
Registrar of Deeds.
MILLER V. THE RICHMOND LICENSING COURT.
In this matter Mr. Sohreiner (for Sir T. U ping-
ton, Q.C.) applied for postponement for a week in
consequence of oertain answering affidavits having
been sent down on paper not suitable for filing.
Mr. Searle, for the appellant, said he would not
oppose the postponement if a promise were given
that the matter should come on for hearing next
week, as his clients were anxious that the case should
be disposed of as soon as possible.
The matter was ordered to stand over until next
week,
125
KEL 1ND OTHERS V. NEL*8 EXECUTRIX.
Will — Mutual — Fiduciary and Fidei-com-
missary heirs — Prohibition to alienate —
Construction — Special Case.
Mr. Juta appeared for the plaintiffs, and Mr.
Bearle for the defendant.
This was a special case, which came on for argu-
ment The plaintiffs were the grandchildren of the
late Gabriel Nel, and the defendant Franoina
Elizabeth Nel, in her capacity as executrix dative
to the estate of the late Gabriel Nel. The late
Mr. Gabriel Nel and his wife, to whom he was
married in community of property, made a mutual
will, dated 22nd Hay, 1869, by which, inter alia,
they bequeathed their farm Strydpoort to their
two sons, Gabriel and Andries Jacobus Petrus
Nel (the fathers of the plaintiffs), which farm
"was to become the property of their said
children ** after the death of the testators, under
the express limitation, however, that the said
heirs should not have the right to sell their respec-
tive shares in the said farm, or to alienate it in
any other manner, but that the same should
devolve upon and pass over to their children and
their descendants as fidei-commissary inheritances.
The testators died without having in any way re-
voked or altered the said will.
Mr. Juta contended that the farm Strydpoort
devolved, upon the death of the testators, in equal
shares upon the sons as fiduciary heirs, and that
upon the death of, or voluntary surrender of his
fiduciary interest in favour of his children by
either of the said sons, his half-share devolved
absolutely upon his children.
Mr. Searle, for the executrix, argued that the
will imposed a fidei commisswn in respect of the
property, and that the same extended as far as, and
included, the fourth generation reckoned from the
plaintiffs ; and that they were consequently not en-
titled to deal with the property in free and absolute
ownership, but that the property upon their
death ought to devolve upon their children,
to be by such children held for and
on behalf of their children and grand-
children according to the terms of the will.
With regard to the fidei commissum extending to
the fourth generation, where a perpetual entail
had not been created, counsel referred to the
following authorities : Voet (36, 1, 83), Van
Leeuwen, Centura Forensis (Pars. 1 , Lib. 3, oap. 7,
Tit 14), Sande (4, 5, 4), and Groenewegen, 159
Nov.
The Chief Justice, in giving judgment, remarked
that at the outset he was rather disposed to favour
the defendant's contention. Since, however, he
had heard the entire argument, and had looked up
be authorities, ha was clearly of opinion that the
plaintiffs ought to succeed. His Lordship read a
passage from Grotius (2, 20, 11) bearing on the
subject, and gave judgment for the plaintiffs, costs
to come out of the estate.
Their lordships concurred.
[Attorneys for the plaintiffs Gus Trollip, for the
defendant J. W. Saner.]
BROWN AND BATE (IN HIS CAPACITY AS
TRUSTEE) V. GREEN.
Insolvency — Ordinance 6 of 1843, sections 48
and 49— Leases —Act 19 of 1864— Cession
— Locus standi of Insolvent — Exception —
Amendment of Declaration.
Sir T. Upington, Q.C., appeared for the plaintiffs,
and Mr. Schreiner for the defendant.
This case came on for argument on the following
exception: "That the declaration discloses no
cause of action, because on the sequestration of
plaintiff's estate In 1884 all his rights vested in his
trustee in insolvency." The facts of the case are
as follows : The first-named plaintiff is a farmer
residing at Lowestoffe, in the district of Cathcart,
and the second-named plaintiff is the former's
trustee in insolvency, the defendant being a
general dealer residing in the division of
Aliwal North. During the years 1871 and
1872 Brown became, and is still, lessee for
twenty-one years, under the previsions of Act 19 of
1864, of the farms Ellerslie and Strath eyre, in the
division of Cathcart. On the 25th May, 1882,
Brown oeded and made over to the defendant all
his right, title, and interest in the said leases as
collateral security for the repayment of a debt due
by him to the defendant, and the latter by a docu-
ment dated 25th May, 1882, undertook to re-cede or
re-transfer to him (Brown) the said leases, or to
give him power to sell the same on his paying in
full the amount of the debt with interest. In the
year 1884 Brown surrendered his estate, and Bate
was appointed, and is still, this trustee in
insolvency. On the 12th December, 1886, a
decree was made confirming the account
and plan of distribution in the said estate.
The declaration alleged that on the 19th June,
1885, the plaintiffs tendered, and offered to pay, to
the defendant the amount of the said debt, with
interest up to date, whereupon it became, and was,
the duty of the defendant to re-cede and' re-transfer
the paid leases to the plaintiff, or to his co-plaintiff,
the trustee of his insolvent estate, for and on
behalf of the creditors of the estate and the plain-
tiff. The defendant then claimed, and still
claims, to retain the said leases for his own bene-r
126
fit, to the damage of the creditors of the estate,
who would be paid in full, and of the plaintiff,
who would be entitled to a surplus after such
payment in full in oase the defendant had not
violated his undertaking and agreement. The
said leases are still in full force and effect, and
form an asset in the said estate, and their
force and validity are fully recognised by the
Colonial Government, who are the lessors on behalf
of the Grown, and who have not determined the
same in favour of the defendant or otherwise, but
have agreed to their continuance in full force in
favour of those beneficially interested in them, in-
cluding the plaintiff*, who have also fully recog-
nised such force and validity. The plaintiff prays :
(a) That the said defendant be adjudged to re-
cede or re-transfer the said leases to the plaintiff or
to his co-plaintiff, the said trustee, for the benefit
of the creditors of the said insolvent estate and of
the plaintiff, upon payment of the lawful
amount of debt and interest as afore-
said, as the plaintiffs hereby tender to do.
(ft) That the said defendant be adjudged to pay
the first-named plaintiff £1,000, as and for damages
by reason of his refusal to re-cede or re-transfer the
said leases as aforesaid, (c) That the plaintiffs
may have suoh further or other relief as may
seem meet, with costs of suit against the said
defendant.
Mr. Sohreiner, in support of the exception, con-
tended that the first-named plaintiff (the insol-
vent) had no Iochs standi, as under the 48th section
of Ordinance 6 of 1 843 all insolvent's estate and
rights vested in his trustee, except personal
rights as provided for in section 49. Counsel, in
his argument, referred to the following cases :
11 Pratt v. Pittman " (4 Juta, 189) ; " Du Plessis
v. Du Plessis'B Trustee " (5 Juta, 220) ; " Coetzee
v. Wentzell " (4 Buch., B.D.C., p. 2).
Sir T. Upington submitted that both in the
interests of the creditors of (he estate and of his
own the first-named plaintiff had a perfect right to
join with his trustee as a plaintiff in the action.
With regard to the second part of the prayer, he
was prepared to substitute the name of the
trustee for that of the first-named plaintiff.
The Chief Justice, in giving judgment, said that
if the insolvent only had sued, the exception would
have been upheld, but the trustee was the real
plaintiff, and Brown was merely nominally
joined as a plaintiff. The exception might have
been disposed of at the hearing of the case.
No order made on the exception. Declaration
allowed to be amended by substituting the Trustee's
name for that of first-named plaintiff in section (ft)
of prayer. Costs to be costs in the cause.
[Attorneys for plaintiffs Messrs. Fairbridge &
Arderne, for defendant Messrs. Van Zyl &
JJuissinne.]
SUPREME COURT.
FRIDAY, MAT 29.
[ Before the Chief Justice (Sir J. H. DB VILLIER8),
Mr. Justice Smith, and Mr. Justice
Buchanan.]
begin a v. fredericks and muhlbb.
Mr. Justice Smith remarked that these two oases
had come before him on review from a sentence
passed upon the prisoners by the Assistant Resident
Magistrate of Clanwilliam. The prisoners were
charged with the crime of theft, and the oases had
been remitted by the Attorney-General to the
Magistrate, who passed a sentence of two years'
imprisonment with hard labour on each of the
prisoners. The sentence must be altered to that
of one year's imprisonment with hard labour, as
the Magistrate had no power to inflict a heavier
punishment.
THE WORCESTER MUNICIPALITY V. THE
COLONIAL GOVERNMENT.
Contract — Specific performance — " Remain-
ing extent " — Construction.
Mr. Sohreiner and Mr. Graham appeared for the
plaintiffs, and Sir T. Upington, Q.C., and Mr.
Giddy for the defendants. — This was an action for
specific performance of a written contract alleged
to have been entered into between the Colonial
Government and the Worcester Municipality. The
facts of the case are briefly these : The Colonial
Government are the proprietors by purchase of the
remaining extent of certain two farms Roodeval
and Langerug, in the division of Worcester, on
other portions of which the erven of the Muni-
cipality are laid out. In February, 1886, the
Commissioners of the Municipality agreed with
the Commissioner of Crown Lands and Public
Works, as representing the Colonial Government,
to buy the remaining extent of the farms above
mentioned for £671 12s., and parliamentary
sanction was obtained for suoh sale.
The defence set up by the Government was that
the " remaining extent "did not include the Drostdy,
or certain native locations and plantations
situated on the said farms, and alleged that these
buildings and portions of the farms were expressly
excluded in the survey that had been made by Mr.
Watson, and that the Commissioners had notice of
such exclusion. The defendants also tendered the
remaining portions of the farms, some 4,000
morgen in extent, with the exclusions above re-
ferred fc>.
iii
Mr. Schreiner having read the correspondence,
nid that it disclosed all the terms of the contract,
and that he did not think it neoesiary to call any
witnesses.
The Court having expressed a wish to hear the
plaintiffs' witnesses, Mr. Schreiner called Mr.
Meiring (chairman of the Worcester Municipality),
who stated that he had been a Commissioner on
and off since 1854. He considered the contract
as contained in the correspondence which had
passed between the Commissioner of Crown Lands
and the Municipality inoluded the Drostdy, as
well as the plantations and locations ; if he had
not thought so he would not have been a party to
the sale, as the Municipality had full commonage
right over the remainder of the farms, and no
advantage could be gained by purchasing what
they already had the use of. He valued
the Drostdy at from £2,000 to £2,500.
He knew that the Municipality were making a good
bargain. He had no recollection of Watson's
having told him that certain portions of the farms
were to be excluded.
Cross-examined by Sir T. Upington : There was
a fence around the Drostdy grounds, and enclosing
the plantations. He did not remember Mr. Wat-
son*s having made any reference to the exclusion
of these places from his survey. He was net aware
that the Municipality held any titles.
Re-examined by Mr. Schreiner: The oommonage
which the Municipality was anxious to acquire
was beyond the boundary of the farms in ques-
tion.
In answer to the Chief Justice, witness stated
that he did not think the Government knew that
they were selling the Drostdy.
Mr. Frederick Lindenberg, an attorney-at-law
and secretary to the Worcester Municipality,
examined by Mr. Schreiner, gave particulars as to
the calling of a meeting of ratepayers to consider
the offer ef the Government. In answer to the
Court, witness said that the Drostdy was the
residence of the Magistrate, and that the lower
part of the building was used as Government
offices. He had some doubts as to whether the
latter building as well as the gaol had been
included in the sale.
Mr. W. A. Nel corroborated the evidence ef the
last two witnesses.
Mr. T. K. Watson, a Government surveyor, stated
that he had surveyed the farms in question, acting
under instructions received from the Surveyor-
General. He pointed out to the Commissioners
appointed to inspect the beacons that a deviation
would be made at the Drostdy so as te exclude
that building as well as the gaoJ.
The examination of the Surveyor-General (Mr.
Marquard) concluded the evidence for the defence.
Mr. Schreiner, addressing the Court, said that
Bo matter how hard this case might appear to be,
his clients stood upon their legal rights and were
entitled to specifio performance of the contract.
The defence set up by the Government was
virtually laesio enormis, which had been abolished
by statute, and in the absence of fraud, which had
not been pleaded, the plaintiffs were entitled to
have the contract construed as it stood, without
the introduction of any matter which might modify
or vary that contract. No injustice could be done
or hardship occasioned, as it was merely a trans-
ferring of property from the central to the local
Government.
The Court, without calling upon Sir T. Uping-
ton, delivered judgment.
The Chief Justice said that this was an
action for specific performance of a contract
of sale entered inte between the Colonial
Government, through the Commissioner of Crown
Lands and Fublio Works, and the Worcester
Municipality. The Government admitted that a
contract was entered into to sell the remaining
portions of the farms Roodeval and Langerug, and
in fulfilment ef that contract offered the plaintiffs
a very considerable quantity ef land, amounting to
about 4,000 morgen. The Municipality, however,
refused to accept this offer, because the
Drostdy and certain native locations and
plantations situated on the farms were exoluded.
If different issues had been raised in the pleadings
he (the Chief Justice) would have had much to
say on the matter, but as the case stood, they had
simply to deal with matters of hard law. It was
oontended on behalf of the plaintiffs that as por-
tions of the farms had been sold for £2,828 8s., and
the property had cost the Government £3,600,
they would be satisfied if they got the difference
between these two amounts, namely, £671 12s. for
the remaining portions. In proof of this, the
letter of the 15th January, 1885, was relied upon.
It was difficult to oonstrue" remaining extent," but
under all the circumstances of the case he (the
Chief Justice) was of opinion that " remaining
extent" meant the land remaining after the
Government had selected those portions
which were exoluded. It was proved that
the Drostdy had always been fenced off
from the commonage, and had always been occu-
pied by the Government, but if the contention of
the plaintiffs was correct they were entitled, not
only to the Drostdy, but also to the railway-station,
as the latter formed part of the farm Roodeval.
He merely mentioned this to show how absurd
was the construction put upon the words, "re-
maining extent," by the plaintiffs. No doubt
there might be circumstances under which these
words might have a different meaning, but he
(the Chief Justice) was satisfied that the true
meaning put upon them was that oontended
for by the Government. He regretted the conduct
of the Government in this matter, whioh was not
128
BHch as one would have expected from a person
dealing with his private affairs. One would have
thought that the Government would have been
more careful in selling property belonging to the
public. The judgment of the Court would be
absolution from the instance with costs.
Mr. Justice Buohanan expressed his con-
currence, and said that he quite agieed with the
remarks which had fallen from the Chief Justice
with regard to the action of the Government in
the matter.
[Attorneys for the Worcester Municipality
Messrs. Van Zyl A Buissinne, for the Colonial
Government Messrs. Reid & Nephew.]
SUPREME COURT.
MONDAY, JUNE 1.
[Before the Chief Justice (Sir J. H. DE VlLLIERS,
Mr. Justice SMITH and Mr. Justice
Buchanan.]
groom and white v. the b ec hu an aland
exploration company, limited.
Mr. Searle and Mr. Shiel appeared for the plain-
tiffs, and Sir T. Upington, Q.C., and Mr. Schreiner
for the defendant company.
This case (the particulars of which are fully set
forth ante page 46,) came on for final hearing.
On the 17th February last the plaintiff's evidence
was heard, and the case postponed for the arrival
in Cape Town of Mr. Harman, the company's
agent in Bechuanaland.
Mr. F. E. Harman, superintendent of the com-
pany, and by profession a geological and mining
expert, examined by Sir T. Upington, stated that
he had lived in Khama' s country a little over a year.
He remembered the plaintiffs* arrival in Palapye
and the subsequent delay in proceeding on their
prospecting expedition, which was mainly due to
Mr. White's illness. He advised plaintiffs to make
for the Crocodile River, as being the only likely
place in Khama's country in which they might find
gold. They stopped, however, at a place about forty
miles from Palapye, and he was obliged to order
them away in accordance with instructions received
from Khama. They then went about fifteen mileB
further on, near the Lotsani River, and he (wit-
ness) was again obliged to order them to desist
from prospecting, as there were cattle posts in the
neighbourhood, and Khama strongly objected to
white men remaining near his people's kraals or
cattle posts. A correspondence then ensued between
plaintiffs and himself which led to nothing, and
subsequently they (plaintiffs) returned to Palapye
and sold all their effects. He saw no specimens of
quartz with plaintiffs after their return. He had
prospected all over Khama's country, and with the
exception of the Crocodile River, he had found no
indications of gold anywhere.
Cross-examined by Mr. Searle : He did not con-
sider that plaintiffs had been guilty of a breaoh of
faith in working where they did. He was of
opinion that there was no gold where plaintiffs had
been prospeoting. The company had pros-
pectors working on the Crocodile River,
but they had not found much gold,
and they had now gone to Mashonaland.
In certain seasons of the year the Crocodile was
unhealthy, but he did not know of any men having
died of fever. One man, Mr. Tregenza, did die,
but his death was due to an overdose of medicine.
Mr. Searle, on behalf of the plaintiffs, contended
that the company had violated the terms of their
contract, and that the plaintiffs were entitled to the
very moderate damages which they had claimed.
The Chief Justice, without calling upon Sir T.
Upington, recited the facts of the case, and after
referring to the correspondence and agreement,
held that there had been no breach — the judgment
of the Court being absolution from the instance,
with no order as to costs.
[Plaintiffs' Attorneys, Messrs. Van Zyl &
Buissinne; Defendants' Attorneys, Fairbridgo &
Arderne.]
[Before Mr. Justice SMITH and Mr. Justice
Buchanan.]
ASKEW V. MOLLER.
Insolvency— Ordinance 6 of 1843, section
19 — Provisional order for sequestration —
Petition unfounded, vexatious, or mali-
cious — Principal and agent — Malice —
Action for damages — Tender — Costs.
Sir T. Upington, Q.C., and Mr. Graham appeared
for the plaintiff, and Mr. Schreiner for the
defendant.
This was an action instituted by Mr. Thomas
Arthur Askew, a produce and forage dealer of
Claremont, against Mr. J. M. Moller, of Johannes-
burg, for £300, damages alleged to have been sus-
tained under the following circumstances : On the
9th January last, the defendant, through his
agent, Mr. H. P. Moller, petitioned the Court for
the sequestration of plaintiff's estate. A provi-
sional order was granted on the petition, and subse-
quently discharged on want of proof of insolvency.
129
The declaration alleged that under colour of the
provisional order the defendant, through his agent,
caused the plaintiffs business premises to be
broken into and entered, and the stock, goods, and
effects of the plaintiff to be attached and seized,
and farther caused the said premises to be closed, to
the exclusion of the plaintiff. The declaration
farther alleged that the petition upon which the
provisional order was granted was, within the
terms of Ordinance 6 of 1843, section 19, unfounded,
and vexatious or malicious, and that the acts of
the defendant, through his agent, in procuring the
said provisional order and in proceeding
thereunder, were unlawful, and were un-
founded and vexatious or malicious. The plaintiff
farther alleged that he had been injured by the
aforesaid acts of the defendant in his business and
credit, and that he had lost the profits and benefit
ef his business during the period that he had been
excluded from the same, and that he had been
damaged to the extent of £300.
The defence set up was that the provisional
order had been obtained under a misapprehension
that plaintiff was actually insolvent. Malice was
denied, and an offer of £50 and costs up to date
made, which latter was however declined.
Mr. T. A. Askew, the plaintiff, examined by Sir
T. Upington, stated that the morning after the
provisional order had been granted he found Mr.
Moller, sen., and the Master's messenger in possession
of his premises making an inventory of his stock,
hones, cartB, <fec. He remonstrated with Mr.
Moller, but the latter told him that he was going
to look after No. 1. Even since the provisional
order had been discharged, he had suffered con-
siderable loss in his business and credit ; and firms
like Messrs. W. Searle & Son and Attwell & Co.,
which formerly had given him credit, now insisted
upon cash transactions. Witness further stated
that some of his best customers had left him, and '
that he estimated the loss he had sustained at
about £244.
In cross-examination by Mr. Sohreiner, witness t
said that he had been recently offered £1,200 for '
his premises by a Mr. Myburgh.
SUPREME COURT.
TUESDAY, JUNE 2.
[Before the Chief Justice (Sir J. H. DE
VlLLIBBS, K.OM.G.), Mr. Justice SMITH,
and Mr. Justice BUCHANAN.]
ASKEW V. MOLLBE.
The further hearing of this case was resumed,
the plaintiff being represented as before by Sir T.
8
Upington, Q.C., and Mr. T. L. Graham, and the
defendant by Mr. Schreiner.
The remaining witnesses for the plaintiff having
been heard,
The Chief Justice asked whether, in cases of
this kind, a principal could be held liable for the
malicious acts of his agent' ? His lordship referred
to the English law on the subject, and quoted the
case of Limpus v. The London General Omnibus
Company (11W.R., 149, 7 L.T. <fe S., 245). In
that caae the driver of an omnibus, whilst plying
between P. and K., wilfully, and contrary to
express orders from his master, pulled across the
road in order to obstruct the plaintiff's omnibus.
In an action for negligenoe it was held that if the
act of driving across to obstruct the plaintiff's
omnibus, although a reokless driving, was never-
theless an act done in the course of the driver's
service, and to do that whioh he thought best for
the interest of his master, the master was
responsible ; that his liability depended upon
the conduct of the servant in the course of his
employment, and that the orders given to him not
to obstruct were immaterial. The Chief Justice
read the remarks ef Blackburn, J., to the follow-
ing effect : " If the jury came to the conclusion
that he (the driver) did it, not to further his
master's interest, not in the course of his employ-
ment as an omnibus driver, but from private spite,
with an object to injure his enemy — who may be
supposed to be the rival omnibus— that would be
out of the course of his employment. That saves
all possible objections."
Mr. Sohreiner, in reply to the Chief Justice, said
that the matter had been referred to in the
pleadings, and that malice had been specifically
denied. As a matter of fact the defendant was in
Johannesburg, and knew absolutely nothing about
the insolvency proceedings. In any event, it was
not for them to plead malice on the part of the
agent.
The Chief Justice asked Sir T. Upington how it
was that defendant's tender of £50 and taxed costs
had not been accepted ?
Sir T. Upington, addressing the Court, said that
£50 would be very poor compensation indeed for
the very serious injury which had been inflicted on
plaintiff's business. Both creditors and customers
had been in a great measure influenced by the
insolvency proceedings, and he (counsel) submitted
that this was a case in whioh the Court would
grant substantial damages.
The Court, without hearing witnesses for the
defence, delivered judgment. The Chief Justice
said it was much to be regretted that the plaintiff
had not accepted the very fair tender which had
been made by the defendant. Under all the cir-
cumstances of the case, he (the Chief Justice) was
of opinion that the tender was fair and reasonable,
and was about the amount the Court would have
130
given by way of damages had no tender been made.
In cases in which a reasonable tender had been
made the invariable practice of the Court was not
to give more than the amount of the tender,
even where, if no tender had been made, they
might possibly award a few pounds more.
The actual damage whioh the plaintiff had sus-
tained amounted to about £60, and under the cir-
cumstances £50 was a fair tender. Plaintiff's
business was mainly a cash one, and the insolvency
proceedings could not very materially affect him.
It was true that in certain kinds of business (a
banker's for instance), the mere fact of a seques-
tration order being granted might have the effect of
ruining a man, but the present was not such a case,
and he (the Chief Justioe) was of opinion that the
Court would not have awarded plaintiff more than
£50 or £60. Under these ciroumstances, judgment
would be given for the plaintiff for the
amount of the tender, £50, with costs up to
date of same. The costs subsequently incurred
must, however, be paid by plaintiff.
[Plaintiff's Attorneys, H. P. du Preez ; Defen-
dant's Attorneys, Messrs. Weasels & St an den].
BEGINA V. JAN PLE8SIS, BACHAEL PLESSI8 AND
SUSAN FINNES.
The Chief Justice remarked that this case had
Come before him on review. The prisoners were
charged with receiving sheep, knowing the same
to have been stolen. There was no question as to
the guilt of the male prisoner ; with regard, how-
ever, to the female prisoners, the only evidence
against them was the statement made by Plessis,
and as this statement was made on the way to the
Police-station, and not on oath, the sentence on the
female prisoners must be quashed, that on the
male prisoner would be confirmed.
OOMBBIKCK Y. MYBUBGH.
Negligence — Grass fire — Damages.
Mr. Juta and Mr. McLaohlan appeared for the
plaintiff ; and Mr. Sohreiner and Mr. Molteno for
the defendant.
This was an action for £100 damages instituted
by the plaintiff, who is the occupier of a farm
called Oude Kraal in the Cape Division, against
the defendant, a farmer living at Hout's Bay.
The declaration alleged that on the 4th February
last the defendant kindled, or caused to be kindled,
on his farm a fire, and negligently allowed the said
fire to spread and extend beyond the boundaries of
his farm down the sides of the mountains known
as the Twelve Apostles, and on to and over
plaintiff's farm Oude Kraal, and thereby
damaged the plaintiff to the amount of £100, by
reason of the destruction of timber and pasturage.
The defendant in his plea admitted that he kindled
a fire on his farm on the 4th February, but alleged
that another fire, and not the one that he had
kindled, had done the damage complained of.
Defendant further pleaded contributory negligence
on the part of the plaintiff, in allowing the fire to
spread and extend over his (plaintiff's) farm.
Upon these facts issue was joined.
Jacob Troutman, a fisherman residing at Hout's
Bay, examined by Mr. Juta, stated that he remem-
bered the fire on Wednesday, the 4th February. He
went into Wynberg in the morning, and saw the
fire on Jkyburgh's farm. The fire was extending
towards Oude Kraal. Witness did not go out to
fish next morning, as there was a strong south-east
wind blowing. He saw no other fires on the
mountain on Thursday.
Mr. De VrieB, a sodawater manufacturer, of
Cape Town, stated that he knew Oude Kraal well,
and was there during the fire. He and several
others watched the fire, which spread over the
farm very quickly owing to the strong south-east
wind which was blowing at the time. Witness
also stated that he saw the pasturage and timber
being consumed.
The plaintiff and a great number of other wit-
nesses were oalled, who were unanimous in their
opinion that the fire extended from Myburgh's
farm over to Oude Kraal.
Mr. Molteno, a Government surveyor, examined
by Mr. Schreiner, stated that he had visited the
scene of the fire, and had made a plan (produced)
of the parts of the mountain which had been burnt.
Witness was inclined to think that there had been
two fires, but where the secend had proceeded from
he could not say.
The further hearing of the case was postponed
until Friday next.
SUPREME COURT.
WEDNESDAY, JUNE 3.
[Before the Chief Justice (Sir J. H. DB
VILLIERS), Mr. Justioe SMITH, and Mr.
Justice Buchanan.
IN BE MARY ARTHUR.
De lunatico inquirendo — Act 20 of 1879 —
Illegal removal and detention of alleged
lunatic — Locus standi of plaintiffs.
Mr. Searle appeared for the Dean of Cape Town
(in his capacity as chairman ef the Committee of
131
Management of St. George's Orphanage) ; the
defendant being represented by Mr. Molteno, her
curator ad litem.
This was an application to make absolute the
role nhi granted on Thursday, the 28th May,
calling upon the defendant to show cause why she
should not be declared of unsound mind and in-
capable of looking after her person and property.
Mr. Molteno raised a preliminary objection as
to the locus standi of the plaintiffs, and submitted
that relatives only could come to the Court with
an application of this kind.
The Court ruled that as some at least of the
Committee of Management were joint trustees
with Mias Arthur of the property and funds of
the Orphanage, they were entitled to ask for the
appointment of a curator bonu.
Mr. Searle having read extracts from the trust
deed under which the Orphanage was constituted,
called.
Dr. Thomas Falkiner, who stated that he had
known Miss Arthur far some years. On the
2 1st of May last he saw Miss Arthur at the
Orphanage. When he entered her room he found
her sitting on a bed made on the floor, snrrounded
by a number of toilet and other requisites.
Miss Arthur would not enter into a
conversation with witness, bat made several
incoherent observations in the form of a song or
chant. She had a bell near her bed which she
rang at intervals. She was suffering from what
she described as the ** chokes," and as a remedy
drank considerable quantities of water. Subse-
quently on the same day (May 21) he received two
letters from Miss Arthur asking him to visit her,
but he did not do so. Some three or four years
ago he had seen Miss Arthur in a similar con-
dition, and he was clearly of opinion that she was
of unsound mini, and incapable of managing the
Orphanage or of taking care of her person or
property. He was one of the doctors who had
signed the certificate.
Gross-examined by Mr. Molteno : Miss Arthur
did not send for him. On the 21st May he
received two letters, one from Archdeacon
Liightfoot and the other from a local firm
of solicitors, asking him to visit her. On the for-
mer occasion to which he had referred he had
declined to sign a certificate, because he did not
want to have anything to do with Miss Arthur's
In answer to the Chief Justice, witness stated
that he could best describe Miss Arthur's symptoms
as being those of " recurrent mania."
Dr.W. C. Scholtz, Miss Arthur's regular attendant,
and who also signed the certificate for her removal,
corroborated in most of the details the evidence of
the previous witness.
By the Court: He had signed the certificate
under protest, but he had no doubt as to Miss
Arthur's insanity. He would have signed the
certificate if Miss Arthur had been a private in-
dividual with friends to look after her.
Dr. Dodds, superintendent of the Valkenberg
Asylum, said that Miss Arthur was admitted into
the institution on the 23rd May. At times she was
perfeotly rational and evinced considerable mental
activity, but at other times she suffered from great
mental excitement. When she was suffering from
the " ohokes *' she was very irritable, the slightest
sound annoyed her, and she made a peculiar noise
more resembling the bark of a dog than anything
else. Water appeared to be the only thing that
caused her relief, and of this she drank large
quantities. She interested herself in the manage-
ment of the asylum, and offered many excellent
suggestions which he (witness) wished he could
carry out. Generally, he was of opinion that Miss
Arthur's mental condition was such that she ought
not to be entrusted any longer with the manage-
ment of the Orphanage, and that she whs not
capable of looking after her person and property.
Dr. C. F. Murray stated that he had examined
the defendant some three or four years ago, and
had signed the certificate for her removal to the
Old Somerset Hospital. The symptoms she then
exhibited were very similar to those which had
been described by the previous witnesses.
Miss Harriet Smith and Miss A. L. Howard
having given evidence as to the eccentric manner
in which Miss Arthur managed the Orphanage
during her attacks of the " chokes."
Mr. Molteno called Mr. Arderne, who stated
that he had been Miss Arthur's attorney for
the last 25 years. He had never seen defen-
dant when she was suffering from the attacks
described by the medical witnesses. When-
ever he had had interviews with Miss Arthur
he never noticed anything which would lead
him to suppose that she was of unsound
mind, and during the hearing of the present case
she had suggested questions as pertinent as any
client he had ever had. He was quite willing to
act as curator bonis if the Court appointed him.
The Chief Justice asked defendant whether she
would like to make her statement in open court or
before judges in chambers.
Miss Arthur, through her counsel, expressed her
strong desire to be examined in open oourt.
After the adjournment the defendant, being
duly sworn, stated that from infancy she had
suffered from a weak heart and from nervous
attacks ; when these attacks were bad they pro-
duced a choking sensation, and were what she
called the " chokes." None of the doctors under-
stood her complaint exactly, but she was at present
writing a book on the " nerves," and when this
work appeared the nature of her malady, which
was not insanity, would be explained. She was
quite prepared to give up the management of the
132
Orphanage in favour of Miss Smith, but she
declined to relinquish control of the funds.
Mr. Molteno said thai before the Court ex-
pressed an opinion on the case, he wished to
question the legality of Miss Arthur's removal to
and detention in the Valkenberg Asylum.
Counsel referred their lordships to Act 20 of
1879, and contended that inasmuch as defendant
was not a dangerous lunatic within the terms of
the Act, the doctors and Magistrate were not
justified in signing the certificate upon which she
has been removed to the asylum
The Chief Justice, in giving judgment, said that
he entertained no doubt whatever but that at
times Miss Arthur was of unsound mind, and
during these periods was incapable of looking after
her person and property. He quite agreed with
Mr. Molteno that the defendant's removal and de-
tention in the asylum were illegal, the terms of the
Act had not been complied with, there was no
proof that Miss Arthur was a dangerous lunatic,
and were it not that Bhe had expressed a wish to
return to the Valkenberg Asylum he (the Chief
Justice) would have ordered her immediate
release. After hearing evidence and Miss Arthur's
statement, the Court were of opinion that de-
fendant was of unsound mind and incapable of
looking after her person and property. Dr. Dodds
would be appointed curator of her person, and Mr.
Arderne of her property, but the defendant would
have leave to apply at any time to have her
curators removed upon showing sufficient cause.
TKENOS V. GABLICK.
Bill of Exchange — Interdict — Attachment.
Mr. Hchreiner appeared for the plaintiff, and Mr.
Searle and Mr. Watermeyer for the defendant.
This was an action to recover £1 12 on a bill of
exchange drawn by Messrs. Johnson & Co., of
Klerksdorp, or the defendant in favour of the
plaintiff. The defendant refused to accept the
bill on presentation, or to honour it when it
became due on the 3rd November last. On the 7th
November the plaintiff obtained an interdict
restraining the defendant from paying to any one
except the (Sheriff £112 out of oertain funds at
that time alleged to be in possession of
the defendant, but belonging to Johnson & Co.
The £112 has since that date remained in posses-
sion of the Sheriff, and the plaintiff now asked for
a declaration of rights, and that the money in
question should be paid to him in satisfaction of
a judgment, for which he prayed the Court. It
appeared that previous to the granting of the
interdict above referred to, an interdict had
already been put upon the funds in defendant's
possession, in the matter of Levin v. Garlick.
(C.T.L.R., p, 25.)
The evidence of Mr. Johnson having been heard,
the Court held that when the second interdict
was granted, there were no funds capable of being
attached, and without hearing further evidence,
gave absolution from the instance with cost*,
including the costs of the interdict.
[Plaintiff's Attorneys C. C de Villiers. Defen-
dant's Attorneys Messrs. Van Zyl and Buissinne.]
SUPREME COURT.
THURSDAY, JUNE 4.
Before the Chief Justice (Sir J. H. De VILLIBRS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.
PROVISIONAL ROLL.
AUBET V. THE EXECUTOR OF HAABHOFP.
Ordinance No. 104, section 33 — Administra-
tion accounts —Non-compliance with terms
of statute — Costs de bonis propriis.
Mr. Graham appeared for the plaintiff, and Mr.
Juta for the defendant.
This was an application under Ordinance No.
104, section 33, calling upon the defendant to file
his administration account and pay, de bonis
propriis, the costs of the present application.
It appeared from affidavit that the defendant
entered upon his duties on the 7th March, 1890, and
up to the present no account had been filed.
An affidavit was read from the defendant in which
he stated that at present he was detained in
Pretoria on important business, but on his return
to Kimberley, a month or two hence, he would be
quite prepared to furnish the required accounts,
and pay plaintiffs claim if the estate was selvent.
The Chief Justioe, in giving judgment, said that
no sufficient cause had been shown by the defendant
as to why he had not filed his accounts. The
Ordinance required that this should be done within
six months. The defendant would be ordered to
file his accounts within three months and to pay,
de bonis propriis, the costs of the present
application.
BATON, ROBERTSON AND CO. V. OLIVER.
On the application of Mr. Watermeyer, the final
adjudication of the defendant's estate was ordered.
The provisional order was granted on the 27th
May.
138
BTEPHAN V. LIPSKTT AND WIPE.
Promissory Note — Provisional sentence —
Arrangement entered into between maker
and payee — Holder in due course — Notice.
Mr. Juta appeared for plaintiff, and Mr. Searle
for the defendants.
This was an application for provisional sentence
on a promissory note for £261 18s. 8d., given under
the following circumstances. It appears that T.
R. Lipsett, the defendant, and his brother, Wil-
liam Lipsett, had been in partnership as general
drapers in Gape Town. William Lipsett's wife
advanced to the business the sum of £460, and
part of this amount was repaid by the firm,
the balance being the sum now sued on.
William Lipsett took a promissory note from T.
R. Lipsett and his wife for the balance, namely,
£261 18s. 8d., on the understanding (as it was
alleged) that the note was not to be put in suit
until T. R. Lipsett was in a position to meet it,
although interest was to run from the 1st March of
this year. Subsequently W. Lipsett indorsed over
the note to his wife's trustee under her ante-
nuptial contract, and the trustee, the present
plaintiff, now sued on it.
Mr Searle contended that this was not a case
for provisional sentence. The note had been
given under special conditions, one of whioh was
that payment was not to be demanded until the
first-named defendant was in a position to pay.
Counsel further contended that inasmuch as Wm.
Lipsett could not sue on the note the present
plaintiff (who was in reality William Lipsett's
wife) could be in no better position.
The Chief Justioe said that if William Lipsett
had sued on the note the Court might have refused
provisional sentence. There was no evidence, how-
ever, that either Mr. Stephan or William Lipsett's
wife was aware of the arrangement which had
been made by the brothers. Under these circum-
stances, provisional sentence would be granted
with costs.
CAREL8E V CAEEL8E.
On the application of Sir T. Upington, Q.C.,
judgment was granted in terms of consent.
REHABILITATIONS.
On motion from the Bar the rehabilitation of
the following insolvents was granted : Walter John
Carrie (deceased), release from sequestration;
Alfred Benjamin Kidwell and Jacob Johannes
Bosfouw,
GKNBRAL MOTIONS.
BEN8BUBG V. PBINB AND OTHEBS.
On the motion of Mr. Searle, the Court made
absolute the rule nisi interdicting the respondents
from molesting applicant, and from trespassing en
his property, situated in the district of Oudtshoorn
and known as part of the farm Matjes River,
pending the result of an action te compel transfer
of the land in question.
DE KLERK V. MABAIS.
Divisional Council election — Ordinance 40 of
1889, sections 18 and 269— Rates— Right
of voting — Owner and occupier.
Sir T. Upington, Q.C., appeared for the applicant,
and Mr. Juta for the respondent.
This was an application for an order setting
aside the decision of the Court of Investigation in
regard to the Divisional Council election for
Tulbagh, and declaring that applicant was elected
a member for the said Council for Ward No. 1.
Sir T. Upington said that the first point the
Court had to decide in this matter was whether,
under Act 40 of 1889, occupiers of land who had
not paid their rates were disqualified from voting.
Counsel referred to several sections of the Act, and
contended that it could not have been the intention
of the Legislature to doprive occupiers of land of
their right of voting merely because the owner,
upon whom the primary duty devolved, had not
paid the rates.
The Court, after hearing Mr. Juta, delivered
judgment.
The Chief Justice said that section 18,
sub-section (a), dearly indicated the
persons who were not entitled to vote,
and section 269 empowered every Council
in suing for the recovery of rates to proceed
against the owner or lessee, or occupier, either
separately or both of them in one and the same
action, each for the whole rate, in any oompetent
court. He was of opinion that when a person can
be sued without notioe for a certain amount, that
amount is due. It did not follow that
because the owner was primarily liable the
occupier was not legally liable. The case of a
principal and surety who had renounced the
beneficia was analogous. As the case was to be
decided on the point submitted, he was of opinion
that the application should be refused with costs.
Mr. Justice Smith referred to several sections of
the Act, and said that he was inclined to think
that the duty of paying the rates was on the
owner of the property. He would draw a distinc-
tion between this oase and that of a principal and
surety.
134
Mr. Justice Buchanan said that at fint he had
some difficulty in arriving at a decision. After,
however, having carefully considered the sections
referred to, he agreed with the construction put
upon them by the Chief Justice.
Application refused with costs.
EXECUTORS MARY QUIN V. EXECUTORS JOHN
QUIN.
Mr. Schreiner moved for the issue of a commis-
sion to take the evidence, de bene esse, of the
defendant at Johannesburg, South African
Republic.
Sir T. Upington, Q.C., opposed the motion, and
said that it was very desirable that the defendant
should be examined in court, as questions of
account would be raised involving a sum of £3,400.
The Court ordered the defendant to be present
at the trial, which was set down specially for
Tuesday, 7th July ; costs to be costs in the cause.
LAWRANCE V. WARD AND WESSEL8.— CORONEL
V. WARD AND WES8EL8.
Practice — Pleadings — Bar — Claim in recon-
vention — Security for costs — Judicatum
solvi.
As the facts in these two matters were similar
they were heard together. Mr. Juta, on behalf of
the first-named defendant, moved for an order re-
moving the notice of bar filed by the plaintiffs
against the defendant Ward, and requiring them to
furnish security to the said defendant for his claim
in reconvention.
Sir T. Upington, Q.C., and Mr. Graham ap-
peared for the plaintiffs.
It appeared that the defendant Ward was barred
from pleading on the 29th of May last.
Mr. Juta read an affidavit Bworn to by Mr. G. M.
Findlay, of the firm of Findlay & Tait, solicitors,
explaining why the pleadings bad not been filed.
The affidavit in question stated that Messrs. Find-
lay & Tait had special instructions from their
client Ward not to incur any expense until ade-
quate security had been given for defendants 1 costs
(the plaintiffs not being domiciled in the Colony),
and that they had acted on those instructions.
That security for oosts was only given and accepted
on 27th May, and that he (Mr. Findlay) contended
that Ward was entitled to eight days from that
date within which to file his plea. That on 3rd
June he tendered the defendants' plea to the
Assistant Registrar, when it was declined, notioe
barring defendant from pleading having
been filed. That the defendant Ward
claims in reconvention the sum of £176,000, and
that he has no security for any amount whioh
he might recover in reconvention, the plaintiff
having no assets within the jurisdiction. — To this
an answering affidavit from Sir T. Scanlen was
read by Mr. Graham.
Sir T. Upington, in opposing the application,
contended that the defendants had no right to lie
by until security had been given, and that it was
their duty to have demanded security. Counsel
characterised the action of the defendants as an
attempt to postpone the case till next
term well knowing that his clients'
right of purchase must be exercised
before the 30th June. Personally, he had no
objection to the bar being removed, on the under-
standing that the case was set down for trial this
term.
Mr. Juta, on the authority of "Taylor 6
Symonda v. Schunke " (C.T.L.R., p. 14), contended
that his clients were entitled to security for their
claim in reconvention.
After further argument, the Court granted an
order removing the bar, made no order as te se-
curity for the claim in reconvention, and fixed
Tuesday, 23rd June, for the trial ; costs to abide
the result.
SUPREME COURT.
FRIDAY, JUNE 6.
[Before the Chief Justice (Sir J. H. DE
VlLLlERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
IN BE SCHEEPERS.
On the motion of Mr. Schreiner, Mr. Jaoobus
Johannes Scheepers was admitted to practise as
an attorney of the Supreme Court, the oaths to be
taken before the Resident Magistrate of Burghers-
dorp.
IN THE INSOLVENT ESTATE OF ROBERT
OLIVER.
On the application of Mr. Waterxneyer, Mr.
William Arthur Eaton was appointed provisional
trustee in the above estate.
IN RE THE KNYSNA CONSOLIDATED GOLD-
MINING COMPANY, LIMITED.
Winding-up Act— No. 12 of 1868— Applic-
ation to be placed under operation of.
Mr. Juta presented a petition from creditors of
the above company for an order placing the com-
pany under the operation of the Winding-up Act
M
of 1868, and suggesting Mr. Charles W. Thesen as
a fit and proper person to be appointed official
liquidator.
Mr. Schreiner presented a similar petition from
three miners who had been brought out from
Kngl a n d, and whose claims against the company
amounted to over £400; the petition further
prayed that Mr. G. W. Steytler, of Knysna, should
be appointed co-liquidator with Mr. Thesen.
The Chief Justice read a letter from the English
liquidator asking that extreme measures should
not be taken, as there was a possibility of refloat-
ing the company if time were given.
The Court, after hearing counsel as to the
relative merits of Mr. Thesen and Mr. Steytler
for the office of liquidator, made an order placing
the company under the operation of the Winding-
up Act, appointed Mr. Thee en official liquidator,
and conferred upon him the powers given under
the 15th section of the Act. Security to be found
to the satisfaction of the Master in the sum of
£2,000.
BENALLT V. BENALLT.
Mr. Searle appeared for the plaintiff; the
defendant in person. This was an action for
divorce instituted by the plaintiff, Jerome Benally
(a French Creole), against his wife, Elizabeth
Benally, by reason of her adultery.
Proof of the marriage having been given,
Castina Meyer entered the box, and stated that
on the 80th March last she was at plaintiffs house,
when a coloured man named Louis called to see
Mrs. Benally. She was subsequently sent for a
bottle of wine, and on her return she learned from
plaintiff's nephew that defendant and the man
Louis were in the bedroom together. She (witness)
afterwards saw them in that apartment under
circumstances which she detailed to the Court.
In answer to the Chief Justice, witness said that
she only told plaintiff about this matter when he
had accused her of stealing his ring.
The evidence of last witness was corroborated
by the nephew of the parties.
The defendant then addressed the Court, pro-
tested her innocence, and stated that her husband
had induced the witnesses to give the evidence
which their lordships had heard.
Finally the Court granted a decree of divorce,
and gave the plaintiff the custody of the child, the
only issue of the marriage.
[Plaintiff's Attorney D. Tennant, jun.]
COMBBIKCK V. MTBT7BOH.
Mr. Juta and Mr. MoLachlan appeared far the
plaintiff, and Mr. Schreiner and Mr. Molteno for
the defendant.
The further hearing of this case, which was
partly disposed of en Tuesday last, was resumed.
Mr. Van Oudtshoorn, examined by Mr.
Schreiner, stated that he was a road superintendent
in the employment of the Divisional Council. He
lived on defendant's property, and on the morning
of the 4th February he was working in a quarry
about 100 yards from Mr. Myburgh's house. He
saw smoke on the mountain before the fire on
M) burgh's farm had been kindled. The smoke ap-
peared to be to the right of Kasteel's Kop. The
fire on defendant's farm was lighted about ten
ajn. The fire did net burn very quickly in the
morning, but in the afternoon the wind was very
violent, and the fire spread rapidly up the moun-
tain. The fire extended to the left of Kasteel's
Kop. In the evening he could not see the fire on
Kasteel's Kop, but he saw the reflection in the
sky. He was sure that was not Myburgh's fire.
Cross-examined by Mr. Juta : The wind was not
strong on the morning of the 4th February. He
oould not say whether fishing-boats could go out
that morning. He (witness) would not have gone ;
he was not fond of the sea. He could see the
mountain and Kasteel's Kop from where he was
standing. He was sure he saw smoke on the
mountain on the morning of February 4 before
the fire was lighted on Myburgh's farm.
Several other witnesses for the defendant were
examined, and they all positively asserted that
there was a fire on the mountain before the fire on
Myburgh's farm was lighted
After argument.
The Court (the Chief Justice dissenting) gave
judgment for the plaintiff in the sum of £60 and
costs.
The Chief Justice, in dissenting from his brother
judges, made the following observations in the
course of his judgment : The questions
to be decided in this case were purely questions of
fact, and these facts would no doubt strike different
minds in a different manner. The plaintiff had to
prove clearly that his neighbour had occasioned the
fire from which he had suffered damage.
A person who in the circumstances of this case
would be criminally liable would certainly be
civilly liable to his neighbour, but if the
defendant were on his trial, he doubted very much
if a jury would find him guilty ; he (the Chief
Justice) oeuld not honestly and conscientiously
convict him. Unless the evidence of the defend-
ant's witnesses was to be wholly disbelieved, there
were two fires burning on the mountain on the 4th
February, and it was just possible that the fire
from Kasteel's Kop reached plaintiff's farm before
the fire from Myburgh's. Under such circum-
stances, he wa* of opinion that the defendant
ought to have the benefit of the doubt ; as his
brother judges had, however, taken a different view
of the case, judgment would be given for the plaintiff.
[Plaintiffs Attorney H. P. du Preez, Defen-
dant's Attorney C. C. do Villiers.]
136
SUPREME COURT.
MONDAY, JUNE 8.
[Before the Chief Justice (Sir J. H. DE VlLLIERS,
K.G.M.G.), Mr. Justice SMITH, and Mr.
Justice Buchanan.
LIQUIDATORS PAABL BANK V. EXECUTRIX
AND HEIRS OF O. J BOUX.
Company — Bank in liquidation - - Contri-
butories — Executrix — Heirs — Liquidators
— Locus standi — Amendment of declara-
tion — Prescription — Costs.
Sir T. Upington, Q C, M.L.A., and Mr. Sohreiner
appeared for the plaintiffs, the liquidators of the
Paarl Bank, and Mr. Juta and Mr. Castens for the
defendants, the heirs of the late Gerhardus
Johannes Roux.
In this case counsel stated that the first
defendant was the widow and executrix of the late
G. J. Roux, and the second defendants the children
of the first defendant and her deceased husband,
the widow being sued in her capacity as heir. The
late G. J. Roux was the registered owner of eleven
shares in the Paarl Bank, and by his will he
bequeathed them to the defendants. He had been
married in community of property, and the widow
had the right to dispose of the shares if she had
ohosen. On the 26th June, 1876, the
first defendant filed an account of liquidation
and administration in the estate, and in that
account the shares were set down as an asset for
£66. The first defendant was awarded the sum of
£1,003 as executrix and £8310s.6d. as heir, and
the other two defendants were awarded
£831 Os. 6d. as heirs. The estate had been placed
on the list of contributories to the bank by an
order of the Supreme Court. It was stated bf the
defendants that there were no assets with which
to meet the bank calls, and the first defendant said
that she had distributed the money in the estate
to the heirs. The plaintiffs demanded payment of
the calls or a refund out of the estate, or that the
said sums which were awarded the heirs should be
set off as a part discharge of the bank calls. The
first defendant was in default, and the other two
heirs took exception to the declaration.
Mr. Juta took exoeption to the declaration, and
contended that the liquidators had no right to sue
and were not the persons to come into court. The
executrix was the person who must sue, and the heirs
must be sued. If money were to be recovered the
executrix must sue, and if the executrix did not do
her duty the Court could be moved by any creditor
to remove the executrix or compel her to do her
duty, as in the case of a negligent trustee in an
insolvent estate.
The Chief Justice said that under the English
law the creditor could sue, as in this case. The
consistent course was for the executor to sue, but
there might be a double liability, and the heirs
might be sued under certain circumstances. This
lady did not sue herself and she would not sue
herself. Did that amount to misconduct which
Troald entitle creditors to have her removed ?
Mr. Juta replied that it did, in his judgment.
Sir T. Upington argued that on the authority of
the case of Fischer v. The Liquidators of the Union
Bank (8 Juta, 46), the Court gave power to a
creditor to sue, as in the present case. Counsel
also referred to Hefmeyr'B case (C.T.L.R., 64).
Mr. Juta submitted that if the plaintiffs in this
case were allowed to succeed there would be no
finality whatever. It was dear that only the
executor could sue.
The Chief Justice : But suppose the executor
does not sue ?
Mr. Juta : That is not proved in this case, my
lord.
The Chief Justice : It is quite clear that Mrs.
Roux will nq} sue herself and her children.
Mr. Juta : She can be compelled by process of
Court.
After argument,
The Chief Justice said that in this case there
was virtually a judgment against the executrix of
the estate. A call had been confirmed by the
Court, and that really amounted to a judgment
against her. From the declaration it appeared
that the call had not been met, there having been
a return of nulla bona, but the executrix said she
had paid out the money to herself as surviving
spouse, and to her children as heirs. The question
was whether she was entitled to recover the money
back from the heirs, or not. If she were entitled
to recover, did she do her duty ? It
was clear she did not intend to do her
duty, and it did not appear likely that
she would sue herself and her children for
this money. The liquidators said they did not
wish to proceed to take extreme steps and have
her removed from her trust, because they could
not say there had been such misconduct on her
part as to justify that extreme oourse. They,
therefore, now sued as creditors of the estate for
sums of money paid to persons not entitled to
them. It being clear that the defendant would
not sue herself and her children, the plaintiffs
were, under the circumstances, entitled to sue.
It appeared further that there were other credi-
tors, among others the Union Bank, and inasmuch
as there were other creditors, he thought it would
be right that any moneys paid to Mrs. Roux
should be paid to her in her capacity as executrix,
so that she might administer the whole funds.
Under those circumstances the Court thought it
better that in the heading of the action there
137
should be plaoed after the word Bonx, "in her
individual capacity as well as her capacity as
•xeeatriz of the late G. J. Boux." If this amend-
ment were made there would be no objection to
the declaration.
Evidence was then led.
Gerhardos Johannes Roux, one of the defend-
ants, examined by Mr. Juta, said that all the heirs
agreed to value the shares at £65 in the
administration accounts. The dividends on the
shares had always been received and kept by his
mother-in-law (Mrs. Roux), and the bank knew
that the moneys in the estate were paid oat to the
heirs.
By Mr. Sohreiner : He did not aot for Mrs.
Bonx in the distribution of the moneys in the
estate, but her son assisted her.
Mr. Jnta pnt in a statement to the effect that
the Paarl Bank was perfectly solvent when the
estate was administered, and for years after, and
said that Mrs. Bonx paid ont £850 of this money
in November last as a compromise to the Union
Bank.
Mr. J. I. de Villiers, M.L.A., one of the
liquidators of the Paarl Bank, examined by Sir
T. Upington, said that with reference to an allega-
tion that the directors of the bank unlawfully
refused to register the shares in suit when desired
by the first defendant, a careful search of the bank
books failed to show a record of any such
occurrence.
By Mr. Juta : He knew who were the directors
of the bank from 1876 onwards. Most of them
were still alive.
After argument,
The Chief Justice said that the Court had
already decided on the exception that the plaintiffs
were entitled to sue the heirs if the executrix
would have been entitled to do so, as she dearly
would have been by the condidio indebiti. Such
being the case, they had next to consider when the
executrix's cause of action arose. In his (the Chief
Justice's) opinion, her cause of action arose as
soon as the money had been paid to the heirs,
when she would have been entitled to have
demanded repayment. If this view were
oorrect, then the plaintiffs were barred
by prescription from proceeding against
the heirs, and their only remedy was
against the first-named defendant in her
individual capacity. Judgment would therefore be
for the plaintiffs against the first defendant for
£1,337 9s. 6d. with costs against her in her indi-
vidual capacity, the oosts of the two last-mentioned
defendants to be paid out of the estate, failing
such payment by the first defendant individually,
and failing her by plaintiffs.
[Plaintiffs Attorney C. C. de Villiers, Defen-
dants* Attorney J. C. Berrange'.]
T
CAPE OF GOOD HOPE BANK (Iff LIQUIDATION)
V. FOEDE AND CO.
Promissory Note— Fixed Deposit Beceipts —
Compensation — Cession of action —Pro-
visional sentence — Final judgment.
The mere fact of indorsing a non-negotiable
instrument does not per se constitute the
indorsee the legal holder unless there has
been a bona fide cession of action.
A. cannot set off as against B. (A.'s creditor)
a debt due by B. to C. although
consents, unless C has ceded his right of
action to A.
Mr. Sohreiner and Mr. Watermeyer appeared for
the plaintiffs, the official liquidators of the above
bank, and Sir T. Upington, Q.C., for the de-
fendants.
This matter was before the Court on the 27th
November last, when provisional sentence was
granted for £1,800. The facts ef the case are as
follows : In June, 1890, the defendants had
overdrawn their account to the amount of £1,300
as security for which the bank held gold scrip. As
the bank demanded further security, Miss Ellen
Forde, daughter of the senior member of the firm,
placed at the disposal of the firm twe fixed deposit
receipts of the Cape of Good Hope Bank for £860
and £780, and a third of the Standard Bank for
£600 (the latter having been drawn from the Stan-
dard Bank and placed in the Cape of Good Hope
Bank at the bank's request). On the 30th June it
was arranged that a promissory note should
be passed and the scrip returned, the
note to be payable on demand, with an
understanding that it was to run for twelve
months, the firm paying interest. r l he three deposit
receipts, representing in all £1,630, were plaoed as
security at the disposal of the bank, with authority
and power to realise in case of failure to pay the
note by the firm. Miss Forde signed the necessary
document to pass the receipts into the bank's pos-
session, and authorised the bank to use the re-
ceipts to extinguish the promissory note for £1,800
if necessary. On the 19th September the bank
stopped payment, the note was presented, and Miss
Forde gave her oheque on the bank. This the
bank refused to accept, though in possession of the
amount of the deposit receipts. The defendant
firm now claimed the right to set off this amount
against the note.
Mr. Allan Wright, examined by Mr. Sohreiner,
stated that he was until recently manager of the
Cape Town branch of the Cape of Good Hope Bank.
He saw Miss Forde the day on which the
promissory note was given. He was of opinion
that she first endorsed the receipts and afterwards
138
signed the pledge. The bank had paid 12a. 6d. in
the £ in the liquidation. The bank had a farther
elaim against the firm for £376 as security, for
which it held Oriental gold shares.
Mr. Jeremiah Forde, senior partner of the firm
of Forde A Co., stated that the bank at the time
the promissory note was given held scrip which
had cost his firm £8,000, the market value of
which at that time was about £4,000. The bank
accepted the deposit receipts and returned the
scrip; as security for £876, the bank held 1,208
Oriental gold shares.
Miss E. Forde detailed the oiroumstances under
which the deposit receipts were lodged with the
bank and the pledge given.
Sir T. Upington, for the defendants, oontended
that on a strict question of law the plaintiffs
could not succeed. Forde 4 Co., through Miss
Forde's indorsement, were the legal holders ef the
receipts, and as soon as these had been accepted
by the bank compensation took place.
Mr. Schreiner, for the plaintiffs, said that he
could add nothing to the argument which had
already been addressed to the Court when the
ease came on for provisional sentence and which
was reported (8 Juta, 80).
The Chief Justice, in giving judgment, said that
there was nothing new in the case. The law as laid
down when the matter came before the Court for
provisional sentence was still applicable. The
mere fact of indorsing an instrument which was
not negotiable could not pass the property. There
must also be a cession of action, and as in this
case there had been no cession there could be no
compensation. Under these oiroumstances, judg-
ment must be given for the plaintiffs with costs.
[Plaintiffs' Attorneys Messrs. Reid & Nephew,
Defendants' Attorneys Messrs. Fairbridge &
Arderne.]
PETITION OP THOMAS MULVIHAL.
On the application of Mr. Schreiner, authority
was given to petitioner to cancel certain mortgage
bond passed by James Copeland in favour of peti-
tioner's father, who is absent from the Colony, and
without any duly-appointed representative.
SUPREME COURT.
TUESDAY, JUNE 9.
[Before the Chief Justice (Sir J. H. DE VlLLIERS,
K.C.M.G.), Mr. Justioe SMITH, and Mr.
Justioe Buchanan.]
NIEHAUB V. NIBHAUS.
Divorce — Notice of trial — In divorce cases
the defendant should have actual notice of
the date of trial.
Mr. Searle for the plaintiff ; the defendant in
default.
This was an action for divorce. The parties
were married, in community of property, in 1871,
at Tulbagh, and there were four children of the
marriage, three minors and one married. In the
years 1889 and 1890 it was alleged the defendant
committed adultery with a woman unknown to the
plaintiff, and the prayrr was for divorce, custody
of the minor ohildren, and a sum towards their
common maintenance.
The Chief Justioe remarked that the defendant
had not had actual notice of trial.
Mr. Searle said that he had had notice that the
trial would take place forthwith.
The Chief Justioe said that it was better in
oases ef divorce that the defendant should have
actual notice of trial.
Mr. Searle said that since he rose he had been
informed that such notioe had really been served,
though he did not know it when he first addressed
the Court.
The marriage having been formally proved,
Mrs. Niehaus deposed that she had four children
of the marriage, the three youngest, boys, being
with her. One was fifteen, one twelve, and the
other nine. For twelve years after the marriage
she and her husband lived at Tulbagh, but
afterwards went to Beaufort West. Her husband
was addicted to drink, and frequently ill-treated
her. Last November her husband went to Piquet-
berg in the service of Combrinok dk Co. He
returned on the 23rd December, and told her he had
committed adultery with a black woman at
Piquetberg. She afterwards came to Cape Town,
and whilst there received a letter from the re-
spondent in which he confessed to unfaithfulness.
The Court ordered a decree of divorce, the
plaintiff to have the custody of the children, and
the defendant to pay £3 per month till the
youngest child reaches the age of twenty-one
Defendant to pay the costs.
[Plaintiffs Attorneys Messrs, Fairbridge $
Arderne.]
139
BODLEY Y. BODLEY.
Mr. Graham for the plaintiff, the respondent in
default.
This was an action for divorce instituted by the
husband, Joseph Horatio Bodley, by reason of the
adultery of the wife, Christina Bodley. The par-
ties were married at Kimberley in 1884, and it was
alleged that in 1890 and 1891 the respondent com-
mitted adultery with Richard Johnson Partridge.
Plaintiff, a tobacconist at Kimberley, deposed
that for about two years after the marriage he
and his wife lived at Kimberley. At the end of
that time respondent left for Cape Town on
account of illness, and subsequently she also went
to Port Elizabeth and Graham's Town. In 1890
Mrs. Bodley was living at the Clifton Hotel, Cape
Town, and from information he received he
instructed a private detective, named Loader, to
make inquiries regarding his wife's suspected mis-
conduct.
Arthur Win. Loader, a private detective, gave
evidence that in March, 1890, Mrs. Bodley and
Partridge were living in the same house at New-
lands, and that on one occasion he watched them
retiring to the same bedroom. He was stationed
outside from eight o'clock to a quarter to eleven,
and watched their proceedings. He knew Mrs.
Bodley, who told him she was plaintiff's wife, and
that her husband was a tobacconist at Kimberley.
He gained admission to the house by asking for
apartments, and Mrs. Bodley did not know he was
engaged by her husband.
Maria Abrahams, a coloured servant at the
Clifton Hotel, stated that she was engaged there
during the latter part of 1890. She knew Mrs.
Bodley and Mr. Partridge. They were staying
together at tne hotel, and Mrs. Bodley on
one occasion told witness her husband lived
at Kimberley and was a tobacconist. She fre-
quently saw Mrs. Bodley and Mr. Partridge
eooupying the same bedroom.
By the Chief Justice : Mr. Bodley never came to
thehoteL
The Chief Justice asked if there were any
photographs?
Mr. Graham saH no, but Mr. Loader could take
plaintiff to the house where Mrs. Bodley was now
living.
The Chief Justice : Tou see there might be two
Bodleys in Kimberley who are tobacconists ?
The plaintiff, recalled, said there was no other
tobacconist named Bodley in Kimberley but him-
self. He had destroyed some of the letters sent
by his wife from the Clifton Hotel.
A decree of divorce was granted, the defendant
to forfeit all benefits derivable under the marriage
in community.
[Plaintiffs Attorneys Messrs. Fairbridge 6
Aiders*.]
HONEYBOBNE V. HONEYBOBNE.
Will — Codicil — Fidei-commissum — Executors
Testamentary and Dative — Bond — Gift or
Loan — Shares in bank in liquidation —
Residuum — Costs.
Mr. Sohreiner appeared for the plaintiffs, and
Mr. Juta and Mr. Watermeyer for the defendant.
ThiB was an action instituted by the official
liquidators of the Union Bank (in their capacity
as executors dative of the estate of the late
Julia M. C. Honey borne, at the time of her death
a registered holder of twelve shares in the Union
Bank) against Mr. George Brittain (in his capacity
as surviving executor testamentary of the ettate
of the late Mr. John Alfred Honeyborne) to
recover the sum of £1,000, being the amount
advanced by the late Mrs. Honeyborne to her
husband's estate, with interest a tempore mora,
Mr. and Mrs. Honeyborne were married without
community of property. Mrs. Honeyborne sur-
vived her husband. Mr. Honeyborne left a will
bequeathing all his property to his children, but
subject to the conditions that his wife should
enjoy the usufruct and profits thereof during her
lifetime. Mrs. Honeyborne and ' one Brittain
were appointed executors. In his estate was some
landed property on which there was a bond of
£1,600 in favour of one Haupt. Mrs. Heney-
borne's father, John Dyason, had shortly before
died. By his will he had left half his property
absolutely to bis daughter, Mrs. Honeyborne.
But to the will he added a codicil in these terms :
" I will that the bequest in favour of my daughter,
Julia, shall be subject to a Jidei commissum in
favour of her children, to the intent that my said
daughter shall enjoy the uacontrolled use of the
property during her lifetime, but that all that
remains at her death shall go to her said
children." Under Dyason's will Mrs. Honey-
borne received about £1,200 in cash and twelve
shares in the Union Bank. The shares were
transferred into her own name. Out of the cash
she received Mrs. Honeyborne paid £1,000 off the
bond due by her husband's estate to Haupt. Mrs.
Honeyborne died shortly after the stoppage of the
Union Bank. She left a will bequeathing her
property to her children, but the executors named
in the will declined to accept. The liquidators of
the Union Bank, as creditors of Mrs. Honeyborne
for the amount due on calls on the shares had
themselves appointed executors dative of her
estate. They now sued the surviving executor of
Mr. Honey borne's estate to recover the £1,090.
The declaration alleged that the £1,000 had been
advanced to the estate of Mr. Honeyborne at the
request of his executors. The plea denied the
request by Mr. Honeyborne's executors, and
alleged further that Mrs. Honeyborne had paid in
i40
the money to benefit herself and her children
who were alone interested in the estate of her
deceased husband. The plea further set forth the
codicil to Dyason's will, and alleged this £1,000
was recived from Dyason and that under the
codicil this money was not the absolute property
of Mrs. Honeyborne, but passed to her children at
her death.
Replication: No gift by Mrs. Honeyborne in
favour of her husband's estate was registered.
Mr. Schreiner for plaintiffs, called Mr. G. W.
Steytler, one of the executors of Mrs. Honeyborne,
and one of the liquidators of the Union Bank, who
gave formal evidence.
Mr. Juta (with Mr. Watermeyer), for defen-
dants, contended that under the codicil this money
belonged to the ohildren and the executors had no
olaim on it.
Mr. Schreiner : This codicil creates at most a
Jidei commissum residui and the fiduciary has the
power to alienate at least three-fourths.
The Chief Justice : She has power to alienate,
but she has not alienated and therefore the Jidei
commissum takes effect.
The Court expressed an opinion that the
ohildren would be entitled to this money, but it
would be necessary for the executors of Mrs.
Honeyborne to administer it.
After this expression of opinion Mr. Juta did
not press the other defences rained in the plea.
The Chief Justice, in giving judgment, said that
no attempt was made to prove that the £1,000 was
a gift, so the Court must take it that it was lent.
If it was money lent it was clear there was no
alienation, and upon her death the £1,000 belonged
to the ohildren, who should claim it in her estate.
The judgment would be for the plaintiffs, their
costs to come out of Mrs. Honey heme's estate,
defendants' costs to be paid out of Mr. Honey-
borne's estate.
[Plaintiffs' Attorney, C. C. de Villiers ; Defen-
dant's Attorneys Messrs. Van Zyl and Buissinne.]
STAPLES V. 8WANEFELDEB.
Pound Ordinance —Act 31 of 1875— Con-
travention— Trespass— Consequential dam-
ages — Resident Magistrate's decision-
Appeal.
Mr. Schreiner appeared for the appellant, and
Mr. Searle for the respondent.
This was an appeal from a decision of the Resi-
dent Magistrate of Middelburg, given in a case
heard before him on the 12th March last. The
appellant (the defendant in the Court below) was
summoned by the respondent for having (as it
was alleged) contravened Act 81 of 1876, section 8,
in consequence of which the plaintiff (present
respondent) sustained damage in the sum of £4
18s. Id. The summons alleged :
Firstly, that the defendant wrongfully and un-
lawfully contravened the 3rd section of the Pound
Act of 1876 by preventing the plaintiff, through the
act of his (defendant's) servants, from satisfying
the damage caused by the trespass of
certain twenty-three horses belonging to the
plaintiff (before the* hones had been impounded),
as the plaintiff would have done if defendant's
servants had taken the horses to the pound by the
nearest road thereto as required by law, but the
defendant's servants avoided the nearest road, on
which plaintiff was standing ready to release his
stock, by which act the plaintiff, was damaged as
follows: (a) £1 3b, being the amount paid the
poundmaster for inclosing and receiving the
animals ; (6) 2s. 6d., extra mileage which he would
not otherwise have paid ; (c) the costs of sending a
man from his work to the pound to release
the horses, 10s.
Secondly, that on the 24th February, 1891, the
defendant again contravened the Act by refusing
the sum of 6s. tendered to his son, who was acting
for and en behalf of the defendant, as being suffi-
cient to satisfy the damage caused by the trespass of
nine horses and one stallion, the property of the
plaintiff, by reason of which refusal the plaintiff had
been damaged in the following : (a) Mileage paid
for an extra driver, 2s. 7d. ; (6) penalty enforced
on a stallion at the pound, £1 ; (c) the impound-
ing of nine horses and one stallion, 10s.; (d)
journey into Middelburg to lodge complaint and
commence action, £1 10s. ; making a total of £4
18s. Id. The Magistrate gave judgment for the
plaintiff for 18s. on the first count, and for
£3 6s. Id. on the second count; from this
judgment the defendant (now appellant) appealed.
— Mr. Schreiner, in support of the appeal, contended
that there had been no contravention of section 8,
the horses had been driven by the nearest route to
the pound. The road upon which the respondent
was standing was a disused road, and there was no
onus cast upon the appellant to travel by that road.
He (counsel) submitted that the finding of the
Magistrate on the first oount was wrong. The
second count was mainly based on consequential
damages, and the Magistrate again erred in giving
judgment for the plaintiff.
Mr. Searle, in reply, urged that the respondent
was bound to drive the horses by the nearest road
to the peund, and in any event he had no right to
drive them, as he had done, across respondent's
land. The expenses claimed in the second count
were reasonable, and such as the Court would
allow.
The Chief Justice, in giving judgment, said that
the Magistrate had clearly erred in giving judg-
ment for the plaintiff (respondent) on the
« -9
141
first count. There was nothing illegal in
the defendant's taking the shortest route
to the pound, and in his (the Chief Justice's)
opinion there had been no contravention of the
Act. With regard to the second count, the plain-
tiff would have been liable under any circum-
stances to pay £1 for the trespass of his stallion.
The £1 10b. was purely consequential damage, which
the Court never granted. Under these circum-
stances, the judgment of the Magistrate would be
altered to that of one for the plaintiff for 12s. 7d.,
with costs in the Court below, the respondent to
pay the costs of the appeal.
[Appellant's Attorneys Messrs. Fairbridge A
Arderne, Respondent's Attorneys Messrs. Van Zyl
dk Buissinne.]
SUPREME COURT.
WEDNESDAY, JUNE 10.
[Before the Chief Justice (Sir J. H. DE VlL-
LIEB8, K.C.M.G.), Mr. Justice Smith, and
Mr. Justice Buchanan.]
CO PEL AND V. SHORT AND CO.
Sale — Justus error — Restitutio in integrum —
Fixtures — Broker's note — Notice — Con-
duct of vendor such as to induce vendees
to believe that they were buying articles
which had previously been sold — Tender —
Arbitration — Costs.
Mr. Schreiner and Mr. Shiel appeared for the
plaintiff, and Mr. Searle and Mr. Castens for the
defendants.
This was an action instituted by Mr. James Cope-
land until recently proprietor of the Phoenix Foun-
dry Cape Town, against the defendants, Short & Co.,
owners of the Vulcan Foundry, for the sum of
£150, being the first instalment of a sum of £860,
the purchase price of certain iron foundry stock-
in-trade sold by the plaintiff to the defendants on
the 18th February last. The defence set up by
defendants was that the purchase price of £300
included the price of a crane and two oupola-
furnaces, whioh the plaintiff had failed to deliver.
The defendants tendered the sum of £125, being the
first instalment of £250, which they alleged was the
full value of the articles which they had actually
received or offered to go to arbitration in the
matter. The plaintiff denied that the crane and
cupola-furnaces had been included in the sale
(they having, as a matter of fact, been already sold
to Mr. W. C. Cooper, the purchaser of the Phoenix
Foundry), and refused the tender offered. Upon
these facts issae was joined.
The plaintiff deposed that the price agreed upon
for boxes, patterns, and sorap iron was £205. He
asked the defendants to take over the rest of the
movables, and they offered £50, or about that.
Nothing was said about the crane or the furnaces,
or the engine and boiler. They were fixtures, with
the shear-legs and mill. The crane and furnaces
had been valued at £100, but he thought they were
worth more. The crane was practically immovable
from the building, of which it formed part. No
man in the trade would call that a movable,
article. The furnaces were sunk into the ground,
and could not possibly be called loose property.
In February, Mr. Sam Short asked what Mr.
Cooper intended to do with the premises, and
witness replied that he was going to run it as a
foundry. Mr. Short said that perhaps Mr. Cooper
would take the crane, and witness said the crane
was Cooper's already. Short said he thought the
crane was theirs, but witness said that was not so.
After that the defendants continued taking de-
livery of the goods. The Shorts never claimed
the furnaces until April.
Cross-examined by Mr. Searle: Mr. Short ap-
proached him on the question of purchase on the
afternoon of the day on whioh Cooper bought the
premises. He did not on that occasion deny that
he had sold the place, nor did he then mention the
crane or the furnaces. He had not brought the
action because Cooper had claimed the crane and
the furnaces. He pointed out the three movables
that the Shorts were not to have, but the crane
and furnaces were never once referred to, being
fixtures.
Abraham Felix, until recently foreman to the
plaintiff, stated that he was present on the 18th
February when Messrs. Short came to the foundry.
Mr. Copeland asked the Shorts to clear out the loose
material, and they agreed, after some bargaining,
to pay him £800. The crane and the cupolas were
never once mentioned.
Cross-examined by Mr. Searle : He had never
told a Mr. Taylor that the crane and the cupolas
were inoluded in the £300, nor did he tell that to
Mr. Short.
Mr. W. C. Cooper, coachbuilder, deposed that
he purchased on the 17th February the building
and the crane and cupolas, whioh were inoluded in
the things detailed in his broker's note.
Mr. Gearing, of the firm of Cunningham &
Gearing, gave it as his opinion that the crane and
furnaces were worth £100 as they stood, to any-
one continuing the foundry as a business.
Cross-examined : The orane had been in use for
thirteen years, and the purchaser would have to
take it down, by whioh some expense would be
entailed. He would not himself have given £250
142
for what Messrs. Short had got. He meant by
that what Messrs. Short pointed out to him, bat
that did not include the drilling machine, bellows,
and anvils. He would not have given more than
£50 for the crane and cupolas if he had had to re-
move them trom the foundry and re-erect them.
By Mr. Schreiner : He did see not the mill, the
large bellows, the shear-legs, the office furniture,
or the drills.
By the Court : He would have given £220 for
all the articles he saw at Messrs. Short.
Mr. Samuel Short, part proprietor of the Vulcan
Ironworks, gave evidence that the only things
excepted in the sale were the engine, the boiler,
the blast-fan, the small bellows, the forge, the old
brass, the pig-iron, and the platform scales. Mr.
(Jopeland did not exclude tho cranes and the
cupolas. The man Felix had said to witness that
he was under the impression that the crane and
oupolas were sold to him and included in the £300.
The only reason why he had offered £250 for the
articles he had got was that he desired to keep the
case out of court. The crane and cupolas, which
were movable without much difficulty, were not
worth above £50 to witness.
Gross-examined : There was no mention of £205,
and he never agreed to pay that Bum for part of
the articles. There were not two transactions in
the matter. He did not think Gopeland told him
the orane was Cooper's. At the time he spoke to
Felix the cupolas had never been mentioned, but
Felix volunteered the statement that witness had
bought the crane and cupolas. Mr. Gearing valued
the things on Tuesday at the request of witness.
He had used the articles, as they had been required,
in his business.
Mr. Thomas Short, brother of the last witness,
deposed that plaintiff pointed out the crane and
cupolas on the 17th February, and said that they
were for sale. He had heard his brother's evi-
dence, and said that it was correct. Everything
was pointed out, and it was dearly understood that
the crane and cupolas were included in the £800.
Mr. Taylor, an engineer at the Docks, examined
by Mr. Searle, stated that he had seen most of the
articles bought by the defendants. He considered
the price given a fair one. He had valued the lot
at £226. There was a good deal of rubbish, and
this he had included under the heading of etceteras.
This concluded the evidence. The hearing of the
argument was postponed until to-morrow.
SUPREME COURT.
THURSDAY, JUNE 11.
[Before the Chief Justice (Sir J. H. DB
Villiers), Mr. Justice Smith, and Mr.
Justice Buchanan.]
PROVISIONAL ROLL.
UNION BANK V. 8HACKELL.
Mr. Schreiner moved for final adjudication of
the defendant's estate. — Granted.
REHABILITATIONS.
On motion from the bar, the rehabilitation of
the following insolvents was granted : Cornelia
W. du Plooy and Johannes Abraham Benjamin
van Wyk.
GENERAL MOTIONS.
PETITION OF CATHERINE J. M. TRUTER.
Mr. Watermeyer moved for leave to sue in
forma pauperis in an action- against her husband
for restitution of conjugal rights, failing
which for divorce, custody of the minor children,
and division of the estate.
Referred to counsel for his certificate.
PETITION OF EXECUTORS OF THE ESTATE
OF PIBNAAR.
Mr. Maskew moved for authority to the Regis-
trar of Deeds to correct an error in the deed of
transfer relating to three erven in the village of
Bethesda, by substituting the name Jacobus for
that of Johannes.
The Chief Justioe remarked that it was extra-
ordinary how frequently these mistakes occurred.
A rule nwt, returnable July 12, was granted,
calling upon the parties conoerned to show cause
why the alteration should not be made. Notice of
the rule to be published in the Government Gazette
and in a Graaff-Reinet paper.
PETITION OF THE MASTER OF THE SUPREME
COURT.
Mr. Giddy moved for the appointment of a curator
ad litem in proceedings about to be instituted by
the authorities of the Old Somerset Hospital to
have one Ryno J. M. Bnxman declared of unsound
mind and incapable of managing his affairs.
The order was granted, and Mr. Tredgold
appointed curator ad litem.
143
BUBOBB6 V. BUBGEBS.
Thii case was postponed till next term, and Mr.
Juts, as curator ad litem, requested to make
inquiries as to the case for the minor heirs
interested.
BULTFONTEIX MINING BOABD V. LONDON AND
SOUTH APBICAN EXPLORATION COMPANY
AND ABM8TB0NO.
Mr. Schreiner made an application for the fixing
of a day out of term for the hearing of this case.
The Court fixed June 24 as the day on which
the action will be heard.
ABBAHAMSE VS. ABBAHAMSE.
Mr. HcLachlan for the plaintiff ; defendant in
default.
This was *n action for divorce, instituted by the
husband by reason of his wife's adultery.
The plaintiff, Dirk Abraham Be, deposed that he
was married in I860, there were two children of
the marriage. His wife left him about eighteen
years ago, and had not lived with him since.
8ophia Abrahamse, plaintiffs daughter, gave
evidence of her mother's infidelity with one John
Idssenberg at the house where witness worked.
Plaintiff, recalled, said he had waited eighteen
yean to get his divorce because he had not been
able to pay the costs. . He sued now in forma
pauperis.
A decree of divorce was granted.
COPE LAND V. SHOBT AND CO.
The hearing of this case was resumed.
Mr. Schreiner and Mr. Shiel appearing for the
plaintiff, and Mr. Searle and Mr. Castens for
the defendants.
Mr. Schreiner argued that it was dear that
nothing had been said when the sale took place
about the crane and cupolas, and it was impossible
that Oopeland could have intended to sell to the
Bherts what he had already sold to Cooper. He
contended that, the defendants not having followed
the course prescribed by the law, the plaintiff was
entitled to a verdict upon the oontract.
When the Shorts found that Copeland would not
give them the cranes and cupolas he submitted
that they should at once have sent back the goods
they had taken. Instead of that, however, they
continued taking delivery, and had used and sold
some of the articles. Defendants by their own
sets had rendered a restitutio in integrum im-
passible. Counsel, in his argument, referred to
the following authorities: ''Benjamin on Sale," 4th
edition, 887, 898, 946; "Logan v. Beit" (7 Juta
197) ; "Harnor v. Groves" (16 C.B., 667).
The Chief Justice remarked that cases of this
sort sometimes led him to think of the superiority,
in some respects, of the English law, under which
sales of the value of over £10 were made in
writing. Had such a course been followed in the
present case, the Court could have let the writings
speak for themselves.
Mr. Searle, for the defence, contended that the
plaintiff found that he had sold to two persons —
Cooper and Short <fc Co. Copeland was in the
position jbhat he had actually sold some of the
fixtures, the mill, and the shear-legB, and the
evidence ef the Shorts was clear on the point that
he also sold them the orane and the cupolas. The
plaintiff had misled the defendants, and therefore
oould not recover on the contract- The element of
value was important in the case, the parties being
men of experience, and the evidence of Mr.
Gearing, brought by the plaintiff, was to the effect
that the goods the Shorts were asked to pay £300 for
were at a liberal valuation not worth more than £250.
The whole difficulty had arisen because the plain-
tiff had inadvertently sold to two parties, and he
must in law take the consequences of his own
error. He proceeded to quote " Irvine & Co. v.
Berg" (Buchanan, 1879, p. 188). His clients had
several times informed Mr. Copeland that the
cash was ready whenever delivery was completed,
or they were prepared to return the goods they had
got.
The Chief Justice, in delivering judgment, said
the Court always had a difficulty in deciding in
oases like the present where there had been a con-
flict of evidence. The broker's note was certainly
in favour of the plaintiff, inasmuch as the crane
and cupola-furnaces were specially mentioned as
having been sold with the premises to Mr. Cooper.
The plaintiff, however, did not show the broker's
note to the defendants, and there was no evidence
that the defendants had notice that the articles in
dispute had already been sold. Again, the oonduct
of the plaintiff was such as to induce the de-
fendants to believe that they were really buying
the crane and furnaces. Under all the circum-
stances of the case, he was inclined to think that
the defendants were entitled to a verdict. Judg-
ment would therefore be for the plaintiff for £125,
the amount of the tender with costs up to date of
plea, the subsequent costs to be paid by the
plaintiff. With regard to defendants' claim in re-
convention, the judgment would be absolution
from the instance.
Their lordships ooncurred.
[Plaintiffs Attorneys, Messrs. Van Zyl &
Buissinne; Defendants' Attorneys, Fairhridge $
Arderne.]
144
SUPREME COURT.
FRIDAY, JUNE 12.
[Before the Chief Justice (Sir J. H. DE VlL-
LIER8, KC.M.G.), Mr. Justice SMITH, and
Mr. Justice Buchanan.]
CHURCHWARDENS OF THE DUTCH REFORMED
CHURCH, ALIWAL NORTH V. GREEN.
Lease — Reduction of rent — " Unlimited
period " — New arrangemeut — Construc-
tion.
Mr. Searle for the plaintiffs ; Mr. Sohreiner for
the defendant.
This was an action instituted by the Kerkraad
of the Aliwal North Dutch Reformed Ghuroh
to recover from the defendant, Mrs. Green, £315,
alleged to be due upon a written lease between the
parties. The declaration set forth that on the 17th
April, 1 883, a written agreement was entered into
between the parties, and a lease signed for the
tenanoy of certain premises for ten years, as from
the 26th November, 1881, the rental to be £316
per annum, payable every four months. The defend-
ant entered into possession of the premises, and in
1888 was in arrear with her rent. On October the
20th the plaintiffs agreed, in consideration of bad
times, to make a temporary reduction in rent, as
from the 26th April, 1888, to £100 a year. On
November 26, 1889, defendant was given notice
that the reduction would no longer be allowed, and
that fiom March 26, 1890, the rent would have to
be paid in accordance with the terms of the lease.
Defendant refused to pay the rent and was sued in
the Resident Magistrate's Court at Aliwal in June,
1890, for £100, being part of the rent. The de-
fendant excepted to the summons on the ground
that the sum in dispute was beyond the jurisdiction
of the Magistrate, but the Court overruled the
objection and gave judgment for the plaintiffs,
whereupon defendant appealed to the Eastern
Districts Court, which reversed the decision of the
Magistrate. The plaintiffs claimed £315, a full
year's rent, now due. The defendant admitted the
formal facts, but said that in Ootober, 1888, the
lease was set aside in respect to its terms and the
annual rental, and that it was thereupon agreed
that the premises should be leased for an un-
limited period at an annual rental of £100,
as from July, 1888. Defendant admitted that
notice was given her, and the old rental was to be
charged again, but said that such notice did not
bind her, a new contract having been entered into.
She tendered £100, being the amount of all the
rent she stated to be due.
Mr. Johannes Stephanns de Wet, a member of
the Kerkraad, gave evidence in Dutch as to the
action of the Kerkraad, and the correspondence
between the parties.
By Mr. Schreiner : The property had undergone
considerable improvements whilst in the plaintiff's
possession.
Mr. E. G. Orsmond, M.L.A., of the firm of
Saner dk Orsmond, plaintiffs attorneys, stated that
he would not receive the £100 which was tendered,
because he did not oonsider it a legal tender Mrs.
Green was a wealthy woman.
The defendant deposed that she was only getting
£50 a year from the premises at present, and
had never received £100 on account of the
property since the reduction took place. She had
paid no rent since November, 1889, but had always
been ready to pay at the rate of £100 per annum.
After November, 1889, the Kerkraad refused to
take payment at £100 yearly. The lease gave her
the option of renewal for a further period of
twenty-three years, but she was unable to con-
tinue the lease at £315 per annum. She had spent
£1,600 on the property, and was prepared to con-
tinue the lease for twenty- three years at £100
yearly. The Kerkraad was anxious to resume
possession of the land she held, in order to erect a
parsonage upon it.
Mr. Searle, in addressing the Court, said that
the Court had simply to construe the agreement
between the parties. If the defendant's conten-
tion were to be accepted by the Court it would
mean that the defendant could retain possession of
the property for ever at an annual rental of £100.
It was clear that the expression " unlimited
period," used by the Kerkraad when it authorised
the reduction, simply meant a period determinable
by the Kerkraad. .
Mr. Schreiner argued that when the Kerkraad
granted the reduotion it terminated the old lease
and commenced a new arrangement. Mrs. Green
had always been willing to hand over to the Kerk-
raad anything over £160 which she received upon
the property.
The Chief Justice in giving judgment said that
the terms of the lease were clear and distinct. In
October, 1888, Mrs. Green obtained a reduction of
rent for an indefinite period, and it was clear that
was a favour, a mere grace on the part of the Kerk-
raad to Mrs. Green. The arrangement was
dearly subject to notice by the churchwardens,
and in 1889 they resolved to revoke the favour
granted to Mrs. Green. If the notice had been
given after November, 1889, there might have been
some force in the argument of counsel for the
defence, but notice was given before that time.
Judgment would be given for the plaintiffs with
costs.
[Plaintiffs' Attorneys, J. W. Sauer; Defen-
dants 1 Attorneys, Messrs. Fairbridge 6 Arderne.]
i45
WHBKLEB V. WHEELER.
Mr. Molteno for the plaintiff, defendant in
default.
This was an action by the husband, William
Andrew Wheeler, for restitution of conjugal
rights, failing which for divorce, by reason of the
wife's desertion. Plaintiff married in 1876, and in
January, 1890, his wife left him. She went to
Cape Town for medical advice, and had since
refused to come back to him, her excuse being
that she did not care to live at Simon's Town,
where plaintiff lived.
The Chief Justice aaid that the wife had written
to the Registrar stating that owing te expected
confinement she was unable to attend the Court.
The Court granted the order as prayed, defendant
to return to the petitioner within a certain period,
failing which to show cause on the last day of next
term why a decree of divorce should not be granted.
[Plaintiffs Attorneys, Messrs. Van Zyl &
Buissinne.]
WILSON V. WILSON AND MINNAAR.
■
Mr. Molteno for the plaintiff ; Mr. Juta for the
defendant Wilson.
This was an action for divorce by the husband
against his wife, Jane Wilson, by reason of her
alleged adultery with the defendant Barend
Minnaar. The plaintiff sought a decree of divorce,
£100 damages against the defendant Minnaar, and
the custody of his children. The defendants
pleaded separately. The first defendant denied
the adultery, and claimed in reconvention a separa-
tion and the custody of the children, and alleged
that her husband had committed adultery with one
Bannie van Wyk. The second defendant denied
the adultery, and set up the plea that the plaintiff
was debarred from suing him by reason of his own
adultery with Van Wyk.
Mr. Molteno stated that all the parties resided at
Fraserburg, where the plaintiff was poet-cart driver.
The evidence was taken at Fraserburg on commis-
sion, and counsel remarked that all the gossip of
the neighbourhood appeared to have come up.
The evidence taken on commission having been
read,
The Chief Justice, in giving judgment, said that
all the parties concerned were equally guilty. The
judgment of the Court would be absolution from
the instance with regard to the claim in convention,
and in reconvention, one farthing damages would
he given against the defendant Minnaar, eaoh side
to pay its own costs.
[Plaintiff's Attorneys, Messrs. Tredgold,
Kdntyre 6 Bisset ; Defendant's Attorney, C. F.
Pieri.]
U
MILLER V. RICHMOND LICENSING COURT.
Licence — Act 28 of 1883, sections 42, 47 and
48 — Rights of Licensing Court — Refusal
to grant licence — 190 rule of Court —
Review.
Sir T. Upington, Q.C, appeared for the
appellant ; and Mr. Searle for the respondents.
This matter came on review under the 190th rule
of Court from a decision of the Licensing Court of
Richmond refusing applicant a hotel licence, on
the grounds that the said refusal was informal,
irregular, and contrary to law. The appellant
claimed that he was entitled to a licence, and
prayed for costs de bonis propriis of certain mem-
bers of the Licensing Court.
Sir T. Upington said that his contention would
be twofold : (1) That the formalities of the law
had not been complied with ; and (2) that the
evidence on oath which appellant had tendered had
not been accepted. Counsel then referred to Act
28 of 1888, and contended that the refusal of the
Licensing Court could not have been under the
48th section ; they must then have proceeded
under section 47, in whioh latter case he submitted
their aotion was illegal.
The Court, without calling upon Mr. Searle,
gave judgment.
The Chief Justice said that Sir T. Upington had
argued the case very clearly and very fairly, but he
(the Chief Justice) was of opinion that the
Licensing Court had acted quite within their
rights. His lordship then referred to the 47th
section, and said that the petition upon which the
licence had been refused set forth sufficient reasons
for the refusal. With regard to the second con-
tention, the 42nd section did not make it com-
pulsory to take the evidence upon oath, the Court
had a discretion, whioh in the present case they had
exercised. The application would be refused with
costs.
[Appellant's Attorney, Paul de Villiers; Res-
pondents' Attorneys, Messr*. Fairbridge 4 Ar-
derne ]
WEIGHT Y. THE COLONIAL GOVEBNMENT.
Mr. Searle (with him Mr. Schreiner) applied for
the issue of a commission to take the evidence,
de bene esse, in Lenden of witnesses for the
plaintiff.
Mr. Jones, for the defendants, consented.
The Court granted the order as prayed for, with
leave to the defendants to produce evidence.
Mr. Priohard, barrister-at-law, was appointed
commissioner.
146
PETITION OF MABGARETHA A. RICHARDS.
Mr. Tredgold moved for a rule nut calling upon
petition er's husband to show cause why she should
not be admitted to sue him in forma pauperis in
an action for restitution of conjugal rights, failing
which for divorce, by reason of his malicious deser-
tion. It appeared from an affidavit read that Mr.
Richards deserted his wife about twenty years ago,
and was last heard of in 1886, when he was
supposed to be in living in Ontario, Canada.
The Court granted a rule niti, returnable on the
20th November next, publication of the rule to be
made in the Ontario Globe, the intend it to be
served with the rule.
Mr. Tredgold was appointed counsel, and Messrs.
fUid dk Nephew attorneys.
SUPREME COURT.
[Before the Chief Justice (Sir J. H. DE
VlLLIEBS, K.C.M.G.), Mr. Justice SMITH,
and Mr. Justice BUCHANAN.]
SATURDAY, JUNE 13.
PROVISIONAL ROLL.
BLUITEB AND NE8ER V. MEDGALF.
Promissory Note — Provisional sentence —
Supreme Court Costs — A. v. B. (Buch.
1868, p. 240) considered— Act 20 of 1856,
section 35.
Mr. Watermeyer moved for provisional sentence
on a promissory note for £6 odd.
The Chief Justice asked why the oase had not
been brought in the Magistrate's Court.
Mr. Watermeyer said that one of the parties
lived at Colesberg, and he submitted that the
plaintiff had a right to sue in the Supreme Court.
The Chief Justice: Yes, but should the Court
allow Supreme Court costs ?
Mr. Watermeyer cited the case " A v. B "
(Buohanan, 1868 p. 240), in which a defendant
residing in Port Elizabeth was sued by a plaintiff
residing in Uitenbage for an amount of about £I2 ?
and although the Court was inclined to grant only
Magistrate's Court oosts, it was found by the Act
of 1866 that the matter was beyond the discretion
of the judges, and Supreme Court oosts were
given.
Mr. Justice Smith : But in that oase the plain-
tiff could not sue in the Magistrate's Court in
Cape Town.
Mr. Watermeyer: That is so, my lord.
The Chief Justioe said he was informed that
the oosts of provisional sentence would amount to
£8. The attorneys might just as well have sued in
the Magistrate's Court. It was clear that although
the Couit must grant the order the Act needed
amending.
Provisional sentence was then granted.
8TANDABD BANK V. J008TE.
Mr. Searle moved for provisional sentence en a
mortgage bond passed in January, 1887, in favour
of one Quinn, and ceded by him to the bank. It
was for the sum of £606, with interest at 7 per
oent. from December, 1886. Notice had been
served on the defendant. — Provisional sentence.
HELLISH Y. FLOBI8.
Mr. Watermeyer moved for provisional sentence
on a mortgage bond for £70, passed by the
defendant in favour of one Geyer, and oeded by
him to the plaintiff, with interest from February,
1890, at 6 per oent. — Provisional sentence.
8ICHEL V. KANNEMEYEB.
Mr. Juta moved for provisional sentence en a
mortgage bond for £300, with interest from
February, 1889. — Provisional sentence.
H. BOS8 AND CO. V. PBRLE.
Mr. Shiel moved for judgment for £77 8s. 2d.
balance of account for goods sold and delivered.—
Judgment granted.
THE MABTEB V. BUXMAN.
De lunatico inquirendo.
Mr. Giddy appeared for the Master ; and Mr.
Tredgold as curator ad litem for the respondent.
This was an application by the Master of the
Supreme Court, in whose hands £160 is placed on
behalf of Buxman, for an order declaring him
of unsound mind and incapable of managing his
affairs. — Dr. Cox, surgeon in charge of the Old
Somerset Hospital, stated that the patient, who
was admitted to the hospital sixteen years ago
under the name of Buxman, was suffering from
chronic mania bordering on imbecility. He was
incapable of managing his affairs. He was about
82 years old, and likely to become leas sane as he
grew older.
The Chief Justioe asked if anyone had identified
the man as Byno Buxman.
147
Dr..Cox said tha*. the superintendent remem.
bend Buxman's grrandmother visiting him. There
teemed no doubt that his name was really Bnxman.
Mr. Tredgold said that on Friday he visited the
alleged lnnatic, who told him his name was Ryno
Bnxman and that he wanted someone to manage
his property. He appeared very weak-minded
indeed.
Mr. Justiee Smith : Has the man been detained
sixteen years as a lunatic without the Oourt being
approached ?
Mr. Giddy said that a Magistrate's order had
been secured, and that was sufficient.
The Court declared Bnxman incapable of
managing his affairs, appointed Dr. Cox curator of
his person, and authorised the Master to pay £24
per year for the maintenance of Buxman at the
Hospital.
HILL AND PADDON V. COLONIAL GOVERNMENT.
Mr. Juta for the plaintiff ; Mr. Sohreiner for
defendants.
Judgment in terms of consent paper put in was
ordered.
REHABILITATIONS.
The Court granted the following rehabilitations :
Isaac Btephanus Jacobus Marais, William
Thomas Birch, Christian Btephanus da Plessis,
Alexander Thompson, William Jacobus van der
Merwe.
PETITION OP THE TOWN COUNCIL OP
PORT ELIZABETH.
Mr. Searle moved for an order authorising the
Sheriff to rank petitioners in the distribution of the
proceeds of certain derelict lands, sold by order of
the Court, for the purchase price of such lots as re-
mained unpaid for by the original buyers at the
sale held in 1863.
The Court granted an order authorising the
Sheriff to pay to the Master the balanoe of the pro-
ceeds, in terms of the Derelict Lands Act, and also
a rule nisi, calling upon W. S. Craig, John Dixon,
and John Passmore, or their lawful representatives,
to show cause en the last day of next term why
the proceeds should not be paid to the applicants,
in terms of the seventh of the conditions of sale,
the rule to be published three times in the Gazette,
once in each of the Port Elizabeth papers, and
once in the Graham's Town Journal.
ROTHWELL V. ROTHWELL.
Mr. Jones moved for the issue of a commission
to take the evidence, de bent e#*«, of petitioner's
witnesses at Port Elizabeth in the suit instituted
by him for divoroe.
The order was granted as prayed, petitioner to
be responsible for the costs of the commission.
WILSON V. WILSON.
The Chief Justice ordered an addition to the
judgment in this case, to the effect that each side
should pay its own costs, but that the defendant
Minnaar should pay the costs of the commission,
which the Court assessed at five guineas. The
Court was of opinion that the relevant evidence
could have been taken in much less time, and con-
sidered that five guineas was sufficient costs.
SMALL V. PRAHE8.
Mr. Sohreiner moved for leave to the defendant
to sign judgment against the plaintiff by reason of
his failure to prooeed with his action alter due
notice.
The Court granted absolution from the instance
with costs, by consent.
IMAUM GASIEP V. SALIE AND ANOTHER.
Imaum or Mahometan priest — Interference
with iu peformance of his duty in the
mosque by rival priest — Possession —
Interdict.
Mr. Juta moved for an order restraining the
respondents from interfering with applicant in the
discharge of his duties as Imaum, or priest, of the
congregation worshipping in the mosque known as
that of Imaum Hadje.
Mr. Searle appeared for the respondents.
Mr. Juta read the affidavit of the applicant, who
stated that, upon the death of the late Imaum
Abdol Kariem, he was appointed Imaum of the
mosque. About a year ago he raised the first
respondent to the position of an elder of the
church The second respondent, Sheikh Abdol
Azizzi, was a native of Mecca, and applicant
allowed him to preach at the Sunday midday
services from time to time. No permanent
arrangement, however, was made, and applicant
himself conducted all the other services. Since the
return from Mecca of the second respondent, he
had again requested permission to preach, but
inasmuch as he had caused dissension and dis-
turbance among the congregation, applicant refused
to permit this. Nevertheless the said respondent
on one occasion forced open the door, and appli-
cant was now prevented from conducting the
148
services, and deprived of his just rights as Imaum
of the oongregation.
Mr. Searle read the answering affidavit of the
first respondent (Hadje Salie), who stated that he
was a regular attendant at the mosque, and that
the second respondent (Sheikh Abdol Azizzi) was
appointed Imaum of the whole congregation, but as
the applicant had been for a long time in the
service of the ohurch he was allowed to remain as
Imaum of the sick and the dead. The applicant
was to take lessens in the duties of an Imaum
from deponent and the second respondent, but only
took a few lessons. The said applicant was in-
competent to perform the duties of an Imaum, and
the sheikh always preached at the midday services.
The said applicant had no power of appointment
over the sheikh, and whatever gatieps and bilals
the said applicant appointed were appointed in seoret,
and not by the whole oongregation. The sheikh
had caused no disturbance or dissension, and the
applicant bad never conducted the services at the
mosque. The applicant had no power whatever
over the sheikh, being of much lower rank. The
applicant was deposed from office as sub-Imaum be-
cause he prevented several hundreds of worshippers
from attending the mosque on a high festival. The
mosque was open to all Moslems, and it was a
serious act to close the doors on high church days.
The members of the congregation of the said
sheikh were about 300, whilst the so-called fol-
lowers of the applicant did not number fifty. The
affidavit of Sheikh Abdol Azizzi, also read by Mr.
Searle, confirmed the affidavit of Hadje Salie, and
stated that deponent appointed applicant Imaum
of the sick and the dead only. The affidavits of
Hadje Magmoet, Abdol Burns, and other members
ef the Moslem community were also read, and bore
out the statements of the respondents.
Mr. Justice Smith : In a case of the mis-
behaviour of an Imaum, who has the power to
remove him ?
Mr. Searle said he believed the congregation had
great powers.
The Chief Justice: Has not this case been
before the Court before ?
Mr. Searle said that there were three mosques in
Chiappini-street where this one was, but he was
advised that the oase of this mosque had not been
before the Court before.
Mr. Justice Smith : Assuming the congregation
has the power, I suppose there is some ordinary
method followed ?
Mr. Searle said that there had been a regular
meeting, at which the applicant was dispossessed
of his office of sub-Imaum.
Mr. Juta read a replying affidavit of the appli-
cant, to the effect that there was only one Imaum
of the whole church, and no suoh official as
Imaum of the sick and the dead. Applicant was
the senior $atiej> in office when the late Imaum
Kariem died. At his death he appointed applicant
his successor, and seventy days after his death the
nomination was solemnly confirmed by the congre-
gation, since which time the various services at the
mosque, and the funeral services of the members
who had died, had been performed under appli-
cant's direction. The statement that he took
lessons was untrue, inasmuch as he was already
fully competent in the services of the mosque as
Imaum, at d had performed them for many years.
He appointed the various gatieps and bilals in
open congregation, and they still held office under
him. As Imaum he was custodian of the mosque,
and when respondents desired to use the mosque
as a meeting-house he refused to let them have
the key, whereupon they broke open the door.
Counsel also read the affidavits of sixteen bilals
and gatieps of the mosque, to the effect that the
applicant's affidavit was oorrect, and that he was
the true Imaum.
Mr. Searle said he had an answering affidavit to
that, but Mr. Juta objected to its being read.
Mr. Juta said that when au Imaum died he had
the right of appointing his successor, but the oon-
gregation had a right of confirmation, and the
applicant had been so appointed. For the last
three years he had oonduoted the services, and
then the gentlemen from Mecca, with several cart-
loads of Claremont Malays, who had no concern in
the matter at all, stepped in and forcibly entered
the place. The office-bearers of the mosque were
unanimous in stating that applicant was the
Imaum.
The Chief Justice suggested that both parties
might consent that the Court should appoint a
gentleman to call a meeting of the congregation
and take a vote, but
Counsel pointed out that there would be con-
siderable difficulty in deciding who were members
of the congregation.
Mr. Justice Buchanan : Is there no book of
church membership ?
Mr. Juta : I am afraid not, my lord.
Mr. Searle said that before an interdict was
granted possession had to be shown, and this the
applicant had not done. The sheikh appeared to
be the ruling official, and was apparently supported
by all the leading members of the Moslem com-
munity in Cape Town. The fact that it had been
found necessary to call in the police showed that a
very large portion of the congregation was in
favour of the sheikh as Imaum of the mosque.
Mr. Juta : We have the original key and they
have a duplicate.
The Chief Justice suggested that alternate
services should be held until the dispute was
settled.
Mr. Searle stated that his client was perfectly
willing for an action for declaration of rights to be
brought as early as possible,^
149
Abdol Soeker, a worshipper at the mosque
daring the last ten years, said that Gasiep was
never Imaum became he never preached, but
during the absence of the sheikh at Mecca he was
appointed to act in the sheikh's place.
By Mr. Juta : The sheikh was high above the
]ate Abdol Kariem and Gasiep, but that did not
prevent Kariem being Imaum. The sheikh was a
kind of bishop of the church.
Abdol Gasiep, the applicant, stated that seventy
days after the dea*h of the late Kariem he was
solemnly appointed Imaum of the mosque in full
congregation, but after he had been in office about
fourteen months difficulties, caused by the sheikh,
began to arise. He had never visited Mecca, but
was fully competent to act as Imaum, and could
read the Koran.
The Chief Justice, in giving judgment, said that
the laws of the Moslem community were so very
vague that it was difficult for the Court in these
cases to be perfectly satisfied as to the real rights
of the parties, but in the present case it did appear
that the applicant, Abdol Gasiep, was recognised as
the nominal Imaum upon the death of Kariem.
As such he would be entitled to the key of the
mosque, although it might be left with one of the
members of the congregation for the more con-
venient use of the congregation. The applicant, in
order to secure his rights, had a padlock placed
upon the door, whereupon the respondent by force
opened the door, entered the mo*que, and interfered
with the rights of the applicant as Imaum. He
appointed a man to preach for him, but before he
could ascend the pulpit the nominee of the
respondents did so, and in that way prevented the
applicant in the discharge of his duties. It struck
him that this was a oase in which some members
of the congregation, who were for the new order
of things, objected to this old applicant, who was
of the old order. Many of the members of the
community had gone to Mecca, and some who had
come from Mecca were more learned than the old
members who had remained here, and no doubt
tome of the congregation felt discontented with the
old order of things. These questions, however,
were not now before the Court, which had to look
at possession. He thought the applicant was in
possession, and therefore the Court ought to grant
an order. The order would be granted as prayed,
with costs against the respondents in the first
instance, but with leave to the respondents to
proceed by action for a declaration of rights.
[Applicant's a ttorney, W. B. Meore ; Respon-
dents' Attorney, J. C. Berrange'.]
SUPREME COURT.
MONDAY, JDNE 15.
[Before the Chief Justice (Sir J. H.de Villiebs),
Mr. Justice Smith, and Mr. Justice
Buchanan].
stegmann v. cohen, and cohen v.
8TEQMANN.
Goods sold and delivered — Action — Pro-
missory Note — Ordinance 6 of 1843,
section 19 - Malicious sequestration of
estate — Cross-action — Damages.
These two cases were taken together. Mr. Searle
and Mr. Graham appeared for Stegmann, and Mr .
Juta and Mr Castens for Cohen.
The first of these was an action brought by
Johannes Augustus Stegmaan, of New lands,
against Ebenezer Cohen, a storekeeper, of Suther-
land, for the recovery of a certain sum of money.
Between July and December of last year, the
defendant became indebted to the plaintiff in the
sum of £997 9s. 5d. for g >ods sold and delivered,
and cash advanced. On the 16th December,
1890, the defendant signed a promissory note pay-
able on April 16, 1891, for £381 5s., being portion of
the said debt. An amount of £50 18s. 5d., due from
the plaintiff to the defendant, had been deducted
by the plaintiff from his debt, and the balance now
due to the plaintiff, according to his declaration,
was £565 6s. on the open account, and £381 5s on
the promissory note. Since the issue of
the summons, the £381 5s. on the promissory
note was sued for. The suit was before the Court
on the 15th May, 1891, and provisional sentence
was granted, and a portion of the money had been
paid, goods being at present under attachment to
satisfy the remainder. An account was annexed to
the declaration showing the amounts alleged to be
due to the plaintiff. The defendant pleaded that
the plaintiff had sold to him goods to the amount
of £901 13s. 3d., the amount alleged to be due by
the plaintiff, the remainder being for cash
advanced. The defendant, however, alleged that
the £901 13s. 3d. was ewing at two years' credit,
with interest at 6 per cent., from July, 1891, to the
time of payment. The defendant also admitted
£95 168. 2d., but said the Plaintiff was indebted to
him in £50 18s. 5d. and £67, the £50 18s. 5d. for the
rent of certain premises and £ 1 7 for cart hire. Con-
sequently, according to the defendant, there was
now owing to the plaintiff the difference between
£ 1 17 18s. 5d., made up of £60 18s. 5d. and £67, which
the plaintiff disputed, and £95 16s. 2d., namely
£22 2s. 3d. The disputed items were three in number,
150
£901 18s. 3d., alleged by the defendant to be subject
to two years' credit ; £50 18s. 6d M and £17. The
second case arose out of the first. It was an action
brought by Cohen against Stegmann f or £ 1 ,000
damages for wrongful sequestration of his
estate. The declaration stated that in March,
1891, the defendant presented a petition for the
sequestration of the estate of Cohen, and that on
the 13th April the order was discharged, but in the
meantime the place of business of the defendant
was closed. There was an alternate claim, that the
defendant falsely and maliciously and without
reason procured the plaintiff's estate to be seques-
trated. The defendant's plea admitted that the
petition was granted, and that the order was dis-
charged on acoount of the non-valuation by the
defendant of certain securities alleged to be of but
trifling value. The defendant pleaded that he had
only protected his own interest, and had borne no
malice against Cohen. Counsel stated that the
plaintiff in the second case proceeded under the
Insolvent Ordinance and the common law, and the
Court would have to decide whether at the time
the petition was granted the estate was, as the
defendant pleaded, actually insolvent.
Johannes Augustus Stegmann deposed that the
transaction arose in Sutherland, to which place
witness was sent by Hamilton Ross A Co. in con-
nection with the business of Otto & Co., Suther-
land, fie agreed to take over certain goods of
Otto's, and afterwards Cohen, who was in business
at Sutherland, agreed to take the store and the
stock over, at six months' credit. It was not true
that witness granted two years' credit to Cohen.
Cohen desired to borrow £70, and when witness
refused to lend him that sum, suggested witness
should pay off the creditors in full, witness looked
into the concern, but was surprised to find that
the defendant's debts were £800. Subsequently
witness offered to take 5s. in the £ for his claim,
but defendant refused to pay even that. In
March witness gave notice to the defendant to
vacate the store, the rent not having been paid.
From what he knew of Cohen's books he considered
Cohen decidedly insolvent — at the time he pre-
HAnted the petition in insolvency against him.
By Mr. Juta : He was aware that in country
storekeeping long credit had to be given to the
farmer?, who \ aid in the wool season. He con-
sidered there were two wool seasons in the year at
Sutherland. He never asked Cohen to assign his
estate in witness's favour. What witness de-sired
was a general assignment After the order of
sequestration was granted Cohen continued Belling,
as was evidence 1 by his books. He never agreed
to pay Cohen £5 a month for the rent of a small
store at Sutherland, or indeed any sum. With
regard to the £17 for cart hire, Cohen offered him
the loan of his cart free of charge. He used the
part about eight or nine days altogether. It was
not true that at the meeting of creditors he
denied having offered to accept 5s. in the £ in
settlement of his claim.
Bzekiel Cohen gave evidence that when Steg-
mann offered the goods at six months be refnsed to
take them, whereupon Stegmann offered two years.
The usual course of business in the country was to
give fanners a year's oredit. He could not possi-
bly have got in enough money in six months to
pay Stegmann. In addition to Stegmann, he
bought goods from many other firms in Cape
Town, and was doing a good paj ing business.
Whilst Stegmann was in Sutherland he asked
witness to pay out the other creditors at 2s. 6d. in
the £, and himself at 20s. in the £, but witness
refused to nuke any such arrangement. Stegmann
and Van Eyk, his agent, at the time they advised
witness to surrender his estate, had already let a
part of the store to another person. It was not
true that witness refused Stegmann's offer to take
5s. in the £. He accepted it. The store was
closed a month under sequestration, but was
opened again in April. Before the place was
closed witness was making from £80 to £120 per
month cash, and a similar amount in oredit sales.
Since the reopening be had paid off many creditors.
He had paid off the whole off Stegmann's note for
£881 5s., and about £400 in addition, bat in con-
sequence of the sequestration proceedings business
had been exceedingly difficult. He was also run-
ning a hotel business, from which he received
amounts up to £30 per month. He had recently
sold his share in the hotel for £150.
His wife conducted a boarding-heuse at Suther-
land, but that was her concern alone. In conse-
quence of the action of Stegmann witness heard
that other creditors were going to press him, so he
called a meeting of ^creditors. He did not sell
goods while the place was under sequestration.
At present he had £800 worth of stock, and his
debts, including Mr. Stegmann's, were far less. He
was perfectly solvent.
By Mr. Searle : He admitted Stegmann had no
security, but he gave witness two years' credit all the
same. Stegmann also became security to Wilman,
Spilhaus 4 Co., Zeederberg 4 Duncan, and 6. W.
Steytler dk Co , for money owing by witness. He
kept a writ issued against him a few days, but it
was under a mistake. He was asked to give a
small parcel to Mr. Van Eyk, whom he did not see
for some days after. He did not know the parcel
contained a writ.
The Chief Justice : If he had known he might
have lost the parcel on the way.
isi
SUPREME COURT.
TUESDAY, JUNE 16.
[Before the Chief Justice (Sir J. H.DE YlLLIERS
K.C.M.G.), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
8TSOMANN V. COHEN AND COHEN V.
STEGMANN.
The hearing of this case was resumed. Mr.
Searle and Mr. Graham appeared for Stegmann.
and Mr. Juta and Mr. Castens represented Cohen,
Carl Engelen, a storekeeper at Sutherland.
called by Mr. Juta, gave evidence that after the
sequestration of Cohen's estate he valued his
whole stock and assets, including the outstandings
and everything else. In his opinion Cohen was
perfectly solvent, and could pay all his debts,
8tegmann's included.
By Mr. Searle : He was one of the creditors of
Cohen, but was in favour of giving him time, and
had been all along. He believed Cohen's assets
were quite £160 over his liabilities. Goods were
generally sold at 100 per cent, profit at Sutherland,
and he valued the stock very low indeed. If 26 or
50 per cent, profit were realised Cohen would have
been perfectly solvent. Witness admitted that if
the books could be made to prove that Cohen ever
since he started had sold goods at cost price he
would be insolvent. At that rate nobody would
be solvent. He took the stock to be worth about
£1,400, but Stegmann offered it to witness for £700.
Gert Cloete, a farmer, to whom Cohen owed
money at the time of the sequestration, deposed
that Stegmann told him Cohen could not pay him.
Thereupon he sued Cohen and was paid. He
would not have pressed Cohen but for what
Stegmann told him.
By Mr. Searle : His brother went and asked
Stegmann what Cohen's position was, but witness
never asked Stegmann about Cohen. He was
fully satisfied with his security.
Benjamin Cohen, brother of defendant, corro-
borated the evidence of Engelen as to the value
of Cohen's stock.
Mr. Searle called Ryk le Sueur Stegmann, for-
merly bookkeeper with Otto <k Co. and afterwards
with Cohen, who stated that when the sequestra-
tion order was made he valued the stook at £700.
He considered that a pretty fair business was done
by Cohen, but as a fact whilst he was there more
money went out than came in.
By Mr. Juta : Cohen was constantly buying new
stock when witness was in his employ.
Willem Francois Maritz, an agent at Suther-
land, said that Cohen told him he would pay all
the ether creditors but Stegmann, who should not
have a penny. He told Stegmann what Cohen had
said a day or two afterwards, before the petition
in insolvency was presented. At the meeting of
creditors he heard Cohen and Stegmann talking
about 5s. in the £, tut before that, in witness's
offioe, Stegmann asked Cohen if he were still
willing to pay him 5s. in the £. Cohen said no.
In May witness attached £300 worth of goods in
the suit of Stegmann v. Cohen, and that left only
£20 worth of goods in the shop.
By Mr. Juta : He had bought the store occupied
by Cohen, but he had taken no proceedings to
oust Cohen. If Cohen were declared insolvent
the place would come to witness at once. He was
willing, however, that Cohen should continue in
possession of the store if he could manage to pay
the yearly rent of £326. If Van Eyk and witness
could get hold of the store thty intended com-
mencing a mercantile business, but if they could
find a good purchaser they would be willing to
sell the place. When Cohen told witness he
would not pay Stegmann, Cohen was in a great
rage.
J. A. Stegmann, recalled at the request of the
Court, stated that he remembered Maritz telling
him Cohen did not intend to pay him. Before that
time Cohen had made a similar statement to
witness, before the petition in insolvency. He
clearly understood from Cohen that he would not
pay witness's account, and that was the reason why
he presented the petition.
By Mr. Juta : He had said in the petition that
Cohen told him, in the presence of witnesses, that
he would not pay him, but as a matter of fact
there were no witnesses present.
Counsel having addressed the Court,
The Chief Justice delivered judgment. He Baid
that in regard to the first action, Stegmann v.
Cohen, the Court was satisfied, as to the £901
13s. 3d., that there was no binding agreement by
which the plaintiff had to wait a couple of years
for his money, such an agreement being altogether
inconsistent with the course of dealiDg and the
evidence in the case. The £50 rent, and the £17
cart-hire appeared to be mere afterthoughts on
the part of Cohen, and the Court would give
judgment in the first case for the plaintiff with
costs. In regard to the second action, Cohen v.
Stegmann, that certainly ought to have been
brought by way of claim in reconvention, and he
did not understand why a separate action
was brought and separate costs inourred*
The case had satisfied him, more than
any other, how careful the Court should
be in applying the Act of 1834,
and he mnst once more repeat that the
Court would require the clearest proof of insol-
vency before an order would be granted, because
he could well imagine that the Act might easily
be abused by persons conspiring to produce general
152
insolvency which they were unable to rrove. In
the present case, if a minute inquiry were made
nto the affairs of Mr. Cohen, he was net perfectly
clear that there wouM be insoh enoy, bat he was
fully satisfied that the defendant Stegmann had
good re eon for believing that there was insol-
vency. Judgment in the second case would be for
the defendant Stegmann, with costs.
[Stegmann's Attorneys, Messrs. Van Zyl &
Buissinne; Cohen's Attorneys, Messrs. Tredgoid
Mclntyre 4 Bisset.]
SUPREME COURT.
WEDNESDAY, JUNE 17.
[Before the Chief Justice (Sir J. H. DK VIL-
LI EBB, K.C.M.G.), Mr. Justice Smith, and
Mr. Justice BUCHANAN.]
In re WALKER V. LIQUIDATOR CAPE CENTRAL
RAILWAYS.
Costs —Counsels 1 fees — Taxation — Review —
Cases.
Sir T. Upington, Q.C., moved for an order
setting aside the reductions made in plaintiff's bill
of costs by the Taxing Officer in respect of the
fees paid to the counsel engsgrd in the case. Mr.
Sohreiner appeared for the defendant Company.
Counsel said the Court doubtless had every
reason to remember the case of Walker vs.
Liquidator Cape Central Railway heard only a
few weeks ago. The applicant in the present
matter was Mr. Buissinne, of the firm of Van Zyl
& Buissinne, attoi neys, Cape Town, who acted on
behalf of Mr. Walker in the case he brought
against the railway. The case was one of the
most important ever heard in t he Court, and the
brief probably one of the heaviest. It wan one «f
immense complication, and he hoped never to
have to deal with Fuch a one again ; indeed he
wished he had never had anything to say in it.
The briefs of leading counsel on both sides were
marked a hundred guineas, whilst those of junior
counsel were marked seventy guineas. The taxing
officer deducted fifty guineas off the fees of
leading counsel, and thirty-five guineas off those of
the juniors, and the applicant alleged that if this
were confirmed, he would be a heavy loser. He
(Sir Thomas Upington) had the greatest possible
hatred of these things because there was an idea
arising that members of the bar and side bar
were anxious to take more money than they were
entitled to ; and he thought everyone would say
so far as the bar of the country was concerned,
that their fees were of the most moderate and
reasonable character, and the bills ef costs were
taxed with great fairness to all parties. The
present taxing officer was a gentleman who was as
perfectly capable of dealing with the qaestion as
anybody that could be found, and he would ask
the Court to decide once and for all whether the
fees were not fair and legitimate.
Mr. Schreinar, on behalf of the Official Liqui-
dator of the Company, said that he was quite
willing to leave the matter in the hands of the
Court.
Counsel referred their lordships to the cases
mentioned by the Taxing Master in his report
and to the principles involved in the same.
The following were the oases : — Bdmeades v.
Mostert,and Bdmeades v. Scheepers. (Cape Argus,
14th July, 1882.)
The Chief Justice said .... "the case
illustrated how necessary it was that the Taxing
Master of the Court should exercise his judgment
and discretion in regard to every item coming
before him independently of any agreement or
understanding, which might exist between the
attorneys. He (the Chief Justioe) said nothing
here about the amount ef Counsel's fees. He
understood that the practice at all times was that
this wa* a matter absolutely within the discretion
of the Counsel himself. The Court had never
interfered in the amount of Counsel's fees because
if a Counsel w?s not satisfied with the fee marked
on his brief he could at all times decline to take
it. Counsel might say ' I am not sufficiently
advised ' unless he saw a fee of 1,000 guineas
marked on his brief, and this could not be
prevented. But it was a very different question
when fees were to be oharged against the opposite
side." And in Swarts v. Landmark (Cape Argus,
18th August, 1882), "The general principle laid
dewn was this— that the unsuccessful party should
not be asked to pay more costs than was ab-
solutely necessary for the decision of the case ;
and if the successful party desired to remunerate
his counsel over and above what he could recover
from the other side, let him do so, but the
unsuccessful party must not be compelled to pay
more than was necessary." In Spengler v. Sea
and Green Point Municipality (Cape Argus, 14th
July, 1883), " It was the duty of the State and the
Bench to bring justice home to every man's doer,
but it should not be made in certain senses
prohibitive." (After acknowledging the willing-
ness of the Bar to come to the aid of paupers) His
Lordship said : <( But there were other people
who, though not exaotly without means, yet were
not in a position to spend a large sum of money on
taking their oases into Court, and the Court ought
iftS
to be careful not to encourage anything which
would prevent that class of persons from
obtaining justice." Beaufort West Municipality
t. Merner {Cape Times, 1st September, 1882)
u the most recent decision on this
point (the reduction of Counsel's fees) was in a
case in which the fees of Queen's Counsel had
been interfered with, and it was laid down by the
Master of the Rolls that the rule was a most
valuable one that the Court would not interfere
with the decision of the Taxing Master with
respect to Counsel's fees unless some grave
■nrfcake bad been committed. He quite adopted
the views of the Master of the Rolls, and as no
grave mistake appeared to have been committed
in this case, the review must be refused with
costs."
The Chief Justice : I must confess that I was
somewhat astonished at this fee, especially after
the remark* made by the Court in previous oases.
There was a time when, as between party and
party, a fee of ten guineas would have been
considered exceptionally high, and now an objec-
tion is raised to a fee of fifty guineas, which has
been allowed as between party and party by the
Taxing Officer. It is quite clear that as far as the
personal feelings of the Court are concerned, we
should be only too glad to see counsel well re-
warded in every case in which they were engaged.
It is for the interests of the public that the best
talent in the country should be drawn to the Bar,
and one of the means of doing that is the general
knowledge that entering the Bar, leads, not only
to fame, but also to fortune. But the Court
cannot allow its personal or professional feelings
to sway in a matter where the interests of the
public are concerned. It is for the public interest
that law costs should be kept as low as possible.
I think in a country like England it has become a
public scandal that litigation has become a luxury.
The result has been that County Courts have been
created, where the fees are much lower, and are
gradually drawing away a great part of the fees
from the Higher Courts of Law where the cases
could be better dealt with. In this country also,
the tendency also undoubtedly has been— at least
since I have been on the Bench — that costs as
between party and party are om the increase. For
myself, I have always, even at the risk of perhaps
giving offence to practitioners, thought it my duty
to protect the public as much as I could. But
still there is a tendency for costs to increase, and
undoubtedly, costs at this moment are very much
higher than they were some years ago. This
may be partly owing to, no doubt, the general
increase of wealth in the country, and the general
status of living, but the fact remains. New, as I
said before, a fee of fifty guineas had been
allowed by the Taxing Master. In my opinion, as
between party and party, it is amole. I am by no
means prepared to say that counsel weuld not
have been justified in saying he would not take
less than a hundred guineas, but it does not follow
that the Court is bound to say that as between
party and party, the other side should pay those
costs. For these reasons I think this appeal ought
to be dismissed with costs.
Mr. Justice Smith said that after the decisions
in previous oases, he was astonished at the appeal
being brought.
Mr. Justice Buahanan endorsed the principle
laid down in the decisions in other oases. It
appeared to him to be so sound that there was no
reason to alter or modify it. The question was,
was the Court to interfere with the Taxing Master
unless some grave mistake had been committed ?
No such mistake had been committed, hence there
was no need for interference.*
[Attorneys for the Appellant Messrs. Van Zyl
& Buissinne — for the Respondent Company
Messrs. Bcanlen 6 Syfret.]
PETITION OF JACOBUS J. DU TOIT.
Ante-nuptial contract — Leave given to re-
gister although contract had not been
tendered for registration within prescribed
period.
Mr. Graham moved for an order to the Registrar
of Deeds to register the ante-nuptial contract
entered into by petitioner and one Anna C. du
Toit, the said contract not having been tendered
for registration within the prescribed time.
The order was granted.
IN THE ESTATE OF JACOBUS S. BOTHA.
Mr. Watermeyer moved for leave to the execu-
trix to raise a loan on mortgage of the share of
the farm Groot Rietvlei, situated in the district of
Somerset Bast, belonging to the estate, for the
purpose of satisfying certain debts.
The order was granted.
CAPE OF GOOD HOPE BANK, IN LIQUIDATION
V. TWBNTYMAN.
Company — Bank in liquidation — Act 23 of
1861, section 1 3 — Execution — In solvent
shareholder — Contributories — Past share-
holders.
Sir T. Upington moved for leave to the official
liquidators to issue a writ of execution against the
• I am indebted to Mr. J. H. Blenkin, of the Cape
Argus, for the report of the argument and judgment in
this esse.— Ed.
154
respondent for the deficiency on calls payable on
fifty shares registered in the name of Henry
Heath, of which shares respondent was the former
holder, or otherwise to place respondent's name on
the list of contributories, as former proprietor
of snch shares.— Mr. Sohreiner appeared for
the respondent.
GAPE OF GOOD HOPS BANK, IN LIQUIDATION
V. WHITTON.
Sir T. Upington made a similar application
in respect of the deficiency on seven shares regis*
tered in the name of Maurice Rabinowitz, of
which respondent was the previous holder. Mr.
Sohreiner appeared for the respondent.
It was agreed to take the two oases together.
After argument,
The Chief Justice delivered judgment. He said
that as to the first case the only question was
whether the winding-up of the bank did as a fact
amount to a process in the nature of an execution.
In his opinion it did. If the winding-up
did amount to a prooess of that character,
it was a sufficient process to justify the liquidators
in placing upon the list of contributories past
shareholders as well as present, provided that the
18th section of the Act had been complied with,
which had Veen done in the present case. The
case was one in which the Court had to deal with a
shareholder who was actually insolvent, and from
whose estate a dividend was recovered. The
dividend, however, was wholly insufficient to meet
the call on these shares, and the application was to
place upon the list the person who sold the shares
to the insolvent. It was left for the Court to say
who were contributories, and having regard to the
paramount interest of the creditors, it was dear
that the respondent should be placed upon the list
of contributories, leaving it to the liquidators to
pay out to past shareholders any funds available
in the event of a surplus — which was improbable.
In the second case, that of Whitton, the terms of
the proviso were too dear, and the judgment of
the Court would therefore be that in the first case
the application would be granted, and in the second
refused. In both cases costs would come out of
the liquidation.
SUPREME COURT.
THURSDAY, JUNE 18.
[Before the Chief Justice (Sir J. H. DB
VILLIERS), Mr. Justice Smith, and Mr.
Justice Buchanan.]
IN THE INSOLVENT ESTATE OF C. J. VILJOEN.
Id solvency — TniBtee — Farms — Title-deeds —
Mutual will— Prae-legacy — Vested interest
of heirs.
Mr. Sohreiner moved for an order requiring the
insolvent to deliver up to the sole trustee of his
estate the title deeds of certain farms in the dis-
trict of Uitenhage registered in the name of the
said Viljoen.
Sir T. Upington, Q.C., appeared for the respon-
dent, and read respondent's affidavit that under the
mutual will of himself and his late wife the farms,
which the Court was asked to deliver up to the
applicant, were given as a prse-legacy to the
children of the marriage. He was led to under-
stand that the trustee, the present applicant,
desired possession of the farms in order to sell the
property to satisfy the debts of respondent's estate,
which would be contrary to the legal rights of the
heirs under the mutual will. He was fully pre-
pared to Land over the farms to the applicant on
the conditien that he would, as trustee, recognise
the vested interest of the heirs, the children.
Mr. Sohreiner said that the trustee was Mr.
Harry Gibson, who deposed th.it he had no such
intention as was attributed to him by the insol-
vent, but would deal with the property in a legal
manner, and sell the half to which the insolvent
was entitled. If the trustee did not do his duty
the respondent clearly had his remedy at law, but
he believed that if the Court granted this applica-
tion there would be no further litigation, inasmuoh
as the trustee would do his duty.
Sir Thomas Upington said that what his client
was afraid of was a sale in insolvency, which
might be held by the Court to confer a good title
to the lands. As a matter of fact the property
was alienated, and the liquidation accounts filed, so
far back as 1862. His client had all along been
willing to lodge the deeds in the hands of the
Master, pending the issue of a friendly action.
The Chief Justice, in giving judgment, said that
the farms were registered in the name of the
respondent, and the only person now entitled to
the title deeds was the trustee. If the trustee
attempted to deal illegally with the property the
respondent, the insolvent, could protest, and even
apply to the Court for protection against any
155
illegal act. It had not been shown, however, that
the trustee had any illegal intention, and the order
would therefore be granted as prayed.
THE CAPE OP GOOD HOPE BANK, IN LIQUI-
DATION.
Company — Bank in liquidation — Confirm-
ation of accounts — Remuneration of Pro-
visional Liquidators.
Mr. Schreiner moved for certain orders upon the
third report of the official liquidators. He said
that the report had been presented, and lain the
usual time for inspection, and no objections were
raised. The first application was for the adoption
of the third report, and then the liquidators asked
for confirmation of the accounts.
The Chief Justice : What has been paid oat ?
Mr. Schreiner: 12s. 6d. in the £, my lord.
Counsel farther moved for the fixing of the re-
muneration of the provisional liquidators. When
the bank stopped payment four provisional liqui-
dators were appointed, and he had now to ask for
the fixing of the remuneration of three, Messrs.
B. R. Syfret, J. Yeoman and W. A. Currey, the
remaining one, Mr J. K. Reid, having sinoe been
appointed one of the official liquidators. These
gentlemen held office for three days, during whioh
£20,000 cash passed through their hands, and they
carried oat a great deal of important work, among
the rest the opposition to an application to appoint
separate liquidators for the Transvaal. The
liquidators recommended an allowance of twenty-five
guineas each to these three gentlemen.
The Court granted an order declaring the report
adopted, confirming the accounts, and fixing
twenty-five guineas each as the remuneration of
Messrs. Syfret, Yeoman, and Currey.
LIEBENBERG Y. VAN DEB WBSTHUIZEN.
Mr. Jnta moved to make absolute the rule nut
for the attachment of the proceeds of a sale of
goods belonging to the defendant, in satisfaction
of a judgment in this Court in the suit between
the parties.
The order was granted.
BEOINA V. GILIOME SEN.
Cattle Diseases Act—No. 2 of 1881— Con-
t invention — Horse* — (blander* — Investi-
gation Board — Isolation — Destruction
If the pen>oiis appointed under section 2 of
the Act are of opinion that animals should
be destroyed, they may have them des-
troyed themselves, or they may isolate
them, but they cannot call upon the owner
to destroy or isolate.
Mr. Schreiner apppeared for the appellant.
Mr. Giddy held a watching brief for the Crown.
This was an appeal from a sentenoe passed by
the Assistant Resident Magistrate of Swellendam,
under the provisions of the Cattle Diseases Act,
1881.
The case arose upon a summons issued at the
instance of one Paul Dunn, who complained that
two horses owned by the appellant were suffering
from glanders, and that the appellant refused to
isolate the said horses, although he was instructed
to do so by members of the Investigation Board
and by the Field-cornet of the district, as provided
by the Act. The appellant was brought before
the Magistrate on a private prosecution, found
guilty, and was fined £10. Counsel submitted
that no offence known to the law had been com-
mitted, and that no private person in the position
of Dunn had any power to summon the appellant.
The Act provided that any private prosecutor,
such as Dunn, should have suffered real injury
before he could appear before the Magistrate.
The Chief Justice, in giving judgment, said that
the only question was whether it did amount to
contravention to refuse to isolate these
horses, after Giliome had been ' warned
so to do by the persons appointed
under the *ct. As he had pointed out before,
destruction was placed on the same footing as
isolation by the Act, and therefore, if these
gentlemen had ordered the appellant to destroy the
horses, and he had not done so, he would
be liable for having contravened the Act.
In his opinion that was never intended by the
Legislature. If the persons appointed under the
second section were of opinion that the animals
should be destroyed, they might have them
destroyed themselves— which was a large power to
give them — or they might isolate them, but thev
could not call upon the owner to destroy or
isolate. They must do it at their own expense and
risk. No doubt under the first section of the Act
a person might be convicted if he had any animal
infected with certain diseases, including glanders,
but dear proof was required of the presence of the
disease. Under the seoond section, however, it
was only required that in the opinion of persons
such as those who moved against this appellant
animals were so infeoted. The present conviction
could not stand, no ottVnce having been committed.
The conviction must therefore be quashed.
[Attorneys for the Appellant, Gus. Trollip;
Attorneys for the Crown, Messrs. Reid 6 Nephew. J
156
PETITION OF CATHERINE J. M. TRUTEB.
Mr. Watermeyer moved for a rule nisi calling
upon petitioner's husband to show cause why she
shall not be admitted to sue him in forma pauperis
in an action for divorce by reason of ;his malicious
desertion.
A rule nut, returnable on July 13, was granted.
BTEYNSBUBG MILL COMPANY.
Mr. Graham moved for an order placing the con-
cern in liquidation under the Winding-up Act of
1868, and appointing an official liquidator with the
usual powers.
The order was granted and Mr. W. F. Neeseman,
of Steynsburg, appointed official liquidator ;
security of £500 to be given.
In re THE MINOB8 BOTHA.
Mr. Bearle moved for the appointment of a
curator ad litem to represent the minors in respect
of the sub-division of certain shares in the farms
Nooitgedacht and GrToenfontein, situated in the
district of Oudtshoorn.
The order was granted, and Mr. 0. M. Lind
appointed curator ad litem.
THE ESTATE OF THE LATE BAMODIBN.
Mr. Graham moved for an order to make absolute
the rule nisi authorising the Registrar of Deeds to
oanoel certain mortgage bond passed by the said
Bamodien on the 26th July, 1846, in favour of
George Apsey, hypothecating a piece of quit-rent
land situated on the Wynberg Flats.
The order was granted.
PETITION OF M. J. VAN RENSBURG AND
OTHEB8.
Mr. Joubert moved to make absolute the rale
nisi for authority to the Registrar of Deeds to
correct certain errors in deedB of transfer relating
to the farm Dassenklip, situated in the district of
Swellendam.
The order was granted.
PETITION OF HENDBIKA C. DALY.
Mr. Graham moved to make absolute the rule
nisi for authority to transfer to the executors of
the estate of the late Michael Daly certain lot of
ground, situated in the district of King William's
Town.
The order was granted.
SAVINGS BANK V. DE BEER.
Mr. Graham moved for an order giving authority
to the Sheriff to accept an offer made for the farm
Hawden, situated in the district of Peddie, the
offer being in excess of the reserve price fixed for
the sale on the 13th December, 1889.
The order was granted.
IN THE ESTATE OF THE LATE MABY
MABONEY.
Mr. Watermeyer moved for an order giving
authority to the tutor dative of the minors inter-
ested in the estate to sell and transfer their shares
of the landed property, of which the minors and
two majors are joint heirs, on condition that the
minors' portions be paid to the Master.
The matter was referred to the Master for
inquiry.
IN THE MATTES OF TEENGS V. GARLICK.
Coete — Counsel's fee — Taxation — Review.
Mr. Searle appeared for the applicant, and Mr.
Sohreiner for the respondent.
This was a matter whioh came before the Court
by way of review from a decision of the Taxing
Officer regarding a case tried during the present
term. The matter arose with reference to the
employment of junior counsel in the oase, and
with respect to a legal consultation. The amount
involved was £16 6s. 4d n of which £18 16s. 6d.
was for counsel's fee and attorney's charges in the
preparation of the brief, and £2 9s. lOd. in connec-
tion with the consultation. Counsel stated that
the fee marked on the brief was five guineas, which
had invariably been held to be reasonable by the
Court. The Taxing Officer disallowed the
amounts, on the ground that the facts of the case
were brought before the Court in the action
Levin v. Garlick (1 C.T.L.R^ 25), which was
before the Court three months ago.
Mr. Schreiner argued that the defence in the
case of Teengs v. Garlick was exactly the same as
in that of Levin v. Garlick, and the Taxing Officer
took up the position that under the exoeptional
circumstances the course he had taken was
justified.
The Chief Justice said that if the Taxing Officer
had allowed the fees in the present case
he was not prepared to aay that the Court
would have disallowed them, but a great deal must
necessarily be left to the discretion of the Taxing
Officer, who was in court when the case was tried,
and knew all the circumstances. There were ex-
ceptional circumstances in the case which would
prevent its being taken as a precedent, and that
being so, the decision of the Taxing Officer would
be upheld.
[Attorneys for the applicant, Messrs. Van Zyl
& Buissinne ; Attorneys for the respondent, C. C,
de Villiers.J
167
SUPREME COURT.
FRIDAY, JUNE ie.
[Before the Chief Justice (Sir J. H. DB VlLLlKRS),
Mr. Justice Smith, and Mr. Justice
Buchanan.]
CORONEL V. WARD AND WES8ELS.— LAURENCE
V. WABD AND WESSELS.
t
>
Diamondiferous farm — Use — Agreement —
Refusal of purchase— Cession — Assigns —
Promissory note — Cancellation of Agree-
ment — Exceptions.
Sir T. Upington Q.C., and Mr. Graham for the
plaintiff; Mr. Searle for Weasels; and Messrs.
Jnta and Jones for Ward.
This was an argument on exceptions.
Mr. Searie said the exception taken by Weasels
was this. That he excepted to the declaration in
that admitting the facts therein alleged the same
gave rise to no cause of action against him
inasmuch as the rights of prospecting and of
refusal granted to the defendant Ward were and
are incapable of oession, assignment or transfer to
any other person without his (the defendant's,
Weasels) oonsent thereto so as to give suoh person
any right of action against him (Weasels) and no
such consent is in the declaration alleged. The
declaration disclosed that the action was one
brought against Ward and Weasels by Coronal for
a declaration of rights under a certain agree-
ment. The declaration set forth that the plaintiff
Coronel was a broke* residing at Kimberley.
Weasels was a farmer, and Ward was a diamond-
digger and speculator. Weasels was the owner
of the farms Benauwdheidsfontein and Oiiphants-
rontein, and in October, 1887, Weasels gave Ward
the right, on payment of £10,000, to use the farm,
and at the same time it was agreed that Ward
should have the refusal of the purchase of the
farm for the sum of £200,000, to be paid in
manner set forth in the agreement. On the 24th
June, 1890, Ward agreed with Coronel whereby,
in consideration of the payment by the latter of a
sum of £2,600, he was to have a quarter-share in
all rights and interests in the concession made by
Weasels to Ward, ft was further agreed between
Coronel and Ward that the latter should prospect
for diamonds on the farm, and the surplus over
from the £2,600, if any, was to be divided between
Coronel and Ward ; also that a correct account
should be kept of the expenditure. The declara-
tion further stated that the plaintiff paid £600
down, and passed a promissory note for £2,000.
lien came the paragraph on which the exception
Tfil really baaed. A notice of the agreement be-
tween Coronel and Ward was duly sent to Wessels ;
but Ward now claimed that the agreement was
cancelled, on the ground that the £2,000 was not
paid on the due date ; and he further refused to
give proper information regarding the develop-
ment of the mine. There was also an agreement
that, on receipt of the sum of £175,000, Weasels
should hand over to Ward the said farms, and that
Ward should transfer certain of his rights to the
plaintiff.
Sir T. Upington said it was dear that, when
these cases came on for trial, the plaintiffs must
be prepared to lodge in court or tender to
Weasels, in case Ward did not do so,
the money required. Weasels had given rights
to Ward or his assigns. If, on the 80th
June, Ward was not prepared to pay this
money to Wessels, the plaintiffs would be entitled
to have the agreement carried out. The plaintiffs
could not enforce their rights until this £175,000
was paid, and if they could not pay it, they would
lose all their rights. Their prayer was that it
might be declared that the agreement was binding
on Ward, and that Wessels was bound to transfer
these farms to Ward on receipt of the sum of
£175,000. Surely this was a fair thing to ask of
the Court, and would not put Wessels in any diffi-
culty at all.
After further argument,
The Chief Justice said it was very desirable
that the Court should decide on the exception
raised on behalf of Weasels. In his opinion,
inasmuch as in the agreement entered into between
Ward and Wessels the assigns of Ward wen
mentioned, he (Ward) would be entitled to cede
his rights to a third person, and the cessionary
would have the same rights as Ward would have
as against Wessels. In his opinion the exception
must be overruled with costs.
Mr. Juta said in the case of Coronel v. Ward
and Wessels. The defendant Ward excepted to
the right of the plaintiff to sue and to have and
maintain this action inasmuch as the plaintiff had
ceded and transferred all his right, title and
in t erect in the Agreement of the 24th January,
1890, entered into between him and the said
defendant to the official liquidators of the Cape of
Good Hope Bank (in liquidation). Coronel was
indebted to the bank in the sum of £40,000, and
the bank held shares to the value of' £8,500 as
security,
The Chief Justice said the bank might perhaps
be made a party to the suit.
Mr. Juta had no objection to the bank being
joined in the case.
Sir T. Upington said that Coronel had a right to
sue in his own name, as he had not made a cession
of his whole right and interests to the bank.
He was quite willing that the bank should be
joined either as plaintiff or defendant,
158
The Chief Justice said in some cases a power
of attorney was given to the cessionary to sue,
and if there had been such a power of attorney in
this case, there would have been no objection to
Goronel being the sole plaintiff. The cession
appeared to him to be an out-and-out one, and
•very right as against Weasels enjoyed by Goronel
had been ceded to the bank. He thought the
proper party to sue was the bank, and the excep-
tion must be allowed, with costs. He did not think
any additional costs need be incurred. He was of
opinion that the bank should nominally be made
oo plaintiff, but the same counsel now engaged
could be employed. The exception must be
allowed, with costs.
LISCHTLY V. STRANGMANN.
Commission — Saleofhorse — Action — Decision
of Resident Magistrate — Appeal.
Mr. Schreiner for appellant ; Mr. Searle for
respondent. This was an appeal from a decision
of the Resident Magistrate of Worcester, in a case
in which appellant claimed £6 as commission for
effecting the sale of a oertain draught stallion,
named Osman Pasha, to ene Mr. W.
van der Vyver, of Stuk River, Robert-
son district, for the sum of £100.
The Magistrate decided against the appellant,
on the grounds that there was nothing in the
evidence to show that the plaintiff took part
in effecting the sale which the defendant
concluded beyond introducing the parties. From
this decision the plaintiff now appealed. After
argument, the Chief Justice said that Mr.
Schreiner had admitted that there was evidence
in support ef the Magistrate's decision. The ap-
pellant had be*»n promised a commission if he
found a purchaser for the horse for £120. If he
(the appellant) had been a licensed broker he
would have had an implied contract, and even if he
did not find a purchaser at the sum named he
would have a claim for commission, but no such
contract could be implied in a dealing between a
general dealer and a miller. It was agreed
between the parties that £6 should be paid to the
appellant if he succeeded in getting £120 for the
horse, but he was unsuccessful, and therefore was
not entitled to anything. If the appellant had
been out of pocket in connection with the matter,
he might have recovered something, but there was
no fmf 'h't Midi was tLe rase. He had been
offered £1 10s, which was no d>»ubt an admission
of liability by the respondent, but the appellant
declined to accept it. In his opinion the
Magistrate was right, and the appeal must bo dis-
missed with costs.
Their lordships concurred.
[Appellant's Attorneys, C. C. Silberbauer ;
Respondent's Attorneys, Messrs. Fairbridge A
Arderne.]
JONES V. CAUVIN AND 00.
Costs — Demand — Rule 312 — Practice —
Appeal.
Mr. Searle appeared for the appellant, and Mr.
Schreiner for the respondents.
This was an appeal from a decision of
the Resident Magistrate of Cape Town
on a question of costs. The respondents
(the plaintiffs in the Court below) sued
the appellant (the defendant in the Court
belew) for the sum of £2 7s., the price of oertain
goods sold to the defendant, including interest and
collection. On receipt of the summons the
defendant tendered the amount of his account, leas
the costs of the summons. This, however, the plain-
tiffs refused to accept. At the hearing, of
the oast the defendant admitted the debt, but
alleged that no demand had been made until issue
of the summons, and submitted that under these
circumstances he could not be held liable for costs.
It was proved at the trial that notice had been
Bent to the defendant. The Magistrate gave
judgment for the plaintiffs with costs, on the
grounds that no demand was necessary, as ail
purchases, according to the conditions of sale, were
for cash, and even if a demand weie necessary,
the sending of the notice and calling were
sufficient. From this decision the defendant
(appellant) now appealed.
Mr. Searle, in support of the appeal, contended
that the Magistrate had erred in holding that no
demand was necessary as the purchases were for
oash. There was no proof that Mr. Jones
had received the notice or any demand prior to
the summons. Counsel directed the attention of
the Court to the following oases : Hepworth v.
Dunkley (3 Juta, 400), Redlinghuys 6 Weasels
v. Jones, Cosnett A Ball (3 Juta, 250), Lesar
v. Morrison (1 Juta, 30), and 312th Rule of Court,
and submitted that under all the circumstances of
the case the appellant ought not to have been held
liable for costs.
The Court, without calling upon Mr. Schreiner
delivered judgment.
The Chief Justice said that they were of opinion
that the appeal ought to be dismissed, on the
simple grounds that the Al agisi .rate h*U fou,.d
that notice had been sent to the defendant. The
plaintiffs' clerk swore that he had posted the notice
to the defendant, and as he had not been cross-
159
examined on this point, there was virtually no
denial. The plaintiffs had done their duty in send-
'ng the notice, and they were not to be put te the
necessity of proving that the defendant had
actually received the notice. Under these circum-
stances the appeal would be dismissed, with costs
in this Court and in the Court below.
[Appellant's Attorney, J. Hamilton- Walker;
Respondents' Attorneys, C. C. Silberbauer.]
BOONZAIER V. CA8TENS.
Slander — Action for damages — Case dis-
missed — Appeal — Assistant Resident Magi-
strate's judgment reversed.
Mr. Schreiner appeared for the appellant ; the
respondent in default.
This was an appeal from a decision of the As-
sistant Resident Magistrate of Clanwilliam. The
appellant (the plaintiff in the Court below), Miss
Hester Helena Boonzaier, sued the defendant (re-
spondent) for £20 damages, alleged to have been
sustained by reason of bis having spread a false
and defamatory report about her to the effect that
she had been delivered of a child. The Assistant
Resident Magistrate dismissed the case on the
grounds that no special damage had been proved.
From this decision the appellant now appealed.
Mr. Schreiner, in support of the appeal, re-
marked that the Assistant Resident Magistrate
had clearly erred, as it was a very elementary
principle of our law that in cases of this kind it
was not necessary to prove special damage.
The Court reversed the decision of the Assistant
Resident Magistrate, and gave judgment for the
appellant for £6 damages, with costs in this Court
sad in the Court below.
[Appellant's Attorneys, Messrs. Tan Zyl &
Buissinne.]
SUPREME COURT.
TUESDAY, JUNE 23.
[Before the Chief Justice (Sir J. H. DB VlL-
LIBBS, K.C.M.G.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
GENERAL MOTIONS.
EXECUTORS MART QUIN V. EXECUTOR JOHN
QUIN.
Mr. Schreiner moved for re-consideration of
defendant's application f er the appointment of a
commission to take his evidence at Johannesburg.
Sir T. Upington, Q.C., appeared for the res-
pondent.
The Court granted an order for the taking of
evidence on commission as prayed, and appointed
Mr. J. G. Auret, barrister-at-law, of Johannesburg
as commissioner.
PETITION OP DAVID KNOX.
Mr. CaBtens moved for leave to sue by edictal
citation in an action against petitioner's wife for
restitution of conjugal rights.
The Court granted leave to sue by edictal
citation, returnable on the 20th November,iper8onal
service if possible, failing which one publication
inthe Scotsman and one in the Daily Telegraph.
WATSON'S EXECUTORS V. WATSON.
Sir T. Upington, Q.C., appeared for Mr. W. A #
Currey, one of the executors in the estate ef the
late Themas Watson, and moved for an order
requiring the respondent to join in an action
about to be instituted against the heirs of the
estate of the late Thomas Watson, to recover from
them the amount of call on fifty shares in the
Union Bank registered in the name of the said
estate.
Mr. Schreiner appeared for Mr. H. F. Watson.
The Court authorised the applicant, Mr. Currey,
to bring an action without the intervention of his
co-executor, Mr. Watson, the respondent to inter-
vene as co-defendant. Costs to be costs in the
cause.
PETITION OF THE SOUTH AFRICAN
AND MORTGAGE AGENCY.
LOAN
Mr. Tredgold moved for leave to sue by edictal
citation, in an action against one Christian H. J.
Bruhns, for recovery of a sum of money due under
a mortgage bond.
The Court granted the order as prayed, citation
returnable on the first day of next term.
PETITION OF EMMA WOODMAN.
Mr. Graham moved for leave to sue in forma
pauperis in an action for damages against one J.
B. Robinson.
The matter was referred to counsel for inquiry.
CORONEL V. WARD AND WES8ELS, AND
LAWRENCE V. WARD AND WESSELS.
Sir T. Upington, Q.C., Mr. Solomon, Q.C., and
Mr. T. L. Graham appeared for the plaintiffs ; Mr.
Juta and Mr. Jones for Ward, and Mr. Searle for
Weasels.
The two oases were taken together by consent
of the parties.
160
Sir T. UpiDgton, in opening the oase, said that a
good many of the facts of the case had been under
the consideration of the Court in connection with
certain exceptions which were very recently heard.
The case at first sight appeared to be of a some-
what complicated nature, mainly arising from the
number of documents that were necessary to be
referred te in connection with it, and the amount
in dispute was of course of considerable magnitude,
but he thought that if the Court would allow him
to refer to the documents a little more in detail
than was usually the case he should be able to
reduce the issues to very simple points. It
appeared that by an agreement which was entered
into by Mr. Weasels, sen., who resided at Welling-
ton, on the 28th October, 1887, Mr. Wessels agreed
that Mr. Ward, his co-defendant in the
present suit, who resided at Beaconsfield,
should have the refusal of certain farms
(Oliphantsfontein and Benauwdhoutfontein) in
Griqualand West for a period of twelve months
from November, 1887. The purchase price of the
farms was fixed at £200,000. It was provided that
during the twelve months Ward had the refusal of
the farms he should have the sole and absolute
right to prospect and search for diamonds or other
precious stones upon the farms, and develope any
mine or mines he might discover on the farms. By
an agreement entered into on the 18th of Ootober,
1888, the period for exercising the option of pur-
chase was extended until the 1st of May, 1889. By
a further agreement, entered into on the 9th
February, 1889, the time was extended to the 1st
February, 1890. It was provided that Ward
should pass his promissory note for £5,000 for such
further extension from May 1, 1889, and that in
case the money was not paid the agreement should
be considered at an end. Subsequently, on the
25th of October, 1889, the period for refusal was
extended to the 3Cth of September, 1890, and a
further and final agreement was entered into on
January 10, 1890. That was an agreement by
which Mr. Wessels agreed to a further extension
of eighteen months, to the 1st of July, 1891. It
was agreed that Wessels should cancel all
previous notes and agreements, and that Ward
should pay for the further extension £3,(00
cash and £2,000 by way of promissory notes pay-
able in July, 1890. An agreement was formally
drawn up on January 24, 1890, by which the de-
fendant Ward agreed in writing with the plaintiff
Lawrence whereby, in consideration of Lawrence
paying £2,500 to Ward, he ceded to him ene-fouth
share in the rights and privileges he had then, he
having already ceded one-fourth share to one
Coronel. The answer Ward gave to that part of
the case was that, as to the payment of £2,500 and
the previous cession to Coronel, he denied those
facts. In the agreement between Ward and
Lawrence the sale to Coronel was reoegnised. That
was Lawrence's case, in respect to which Ward
replied that by the terms ef an agreement of the
10th January, 1890, he was to pay to Wessels
£10,000 by the 16th January. Ward was unable
to pay the money, and as a result of negotiations
entered into with the plaintiffs it was agreed that
they should receive each one- fourth share in the
whole of the rights possessed by Ward in consider-
ation of the payment of £5,000. Coronel and
Lawrence were each to pay £1,500 in cash, and the
other £2,000 at a date which was fixed in the
month of July, 1890, Coronel agreeing to pay the
£2,000 in full, and signing a note to that
effect. The allegation on the defendants 1 pleadings
set out that the note fell due on the
16th July, 1890, and was renewed, but that on the
date fixed in the renewal bill Ward was unable to
meet it, whereupon Weasels declined to renew
further, and the agreement between Wessels and
Ward was accordingly cancelled by oensent. The
issues which appeared to him to be raised were
these : In the first place, it being clear that as far
as Lawrence was concerned he entered into an
agreement and paid £2,500, oould any oase be set
against Lawrenoe which was not based upon his
contract; secondly, did Lawrence or did he not
pay £2,500 ; thirdly, if he did, had anything sub-
sequently occurred which was due notice to
Wessels that Lawrence was a party to this agree-
ment ; fourthly, if so, had Weasels any right
whatever to cancel this contract upon Ward's
failure ; and fifthly, did he so cancel it ?
Evidence was then called.
The plaintiff, William Lawrence, examined by
Sir T. Upington, said that he now resided in
Pretoria, where he was manager of the Transvaal
Loan and Mortgage Company. In Deoexnher,
1889, and for some time subsequently, he* was
manager in Kimberley of the Cape of Good Hope
Bank. He remembered that in December, 1889,
Ward spoke to him outside the bank
with regard to the Wesselten property,
of which witness knew he held the
refusal. He informed witness then that his term
would expire on the 81st December, and said he
wished to raise £5,000 to get an extension of the
refusal for another nine months. The result of
the matter was that he discussed the whole thing
with Mr. Coronel. Subsequently, he entered into
an agreement with Ward, on the 24th January,
1890. He had not seen anything, in the interven-
ing period, of Mr. Marais, the general agent of Mr.
Wessels. An arrangement was made to meet Mr.
Marais, but before that took place Mr. Coronel
said he would like to look over the property, and
they all drove over it one Saturday afternoon,
Coronel and Ward meeting at the latter's house.
Under the agreement the sum of £2,500 was to be
paid by witness, and was paid in full, in terms of
the contract. He knew nothing of any collateral
161
agreement, nor of any other agreement rove the
one of January 24, 1890. He had signed no other
agreement. His liability finished when he paid
hii money, and had ne liability whatever npon
Coroners promissory note. In addition to the
£2,500, he paid £3 per month as his pro rata share
of the rent of certain machinery on the mine, and
also £25 to Mr. Goodchild, also as a pro rata share
of the fee for making a valuation. Coronel also
paid £25 to Goodchild. After the agreement was
signed he called upon Mr. Marais, the general
agent ef Mr. Weasels, at his house upon the
property. That was at the commencement of
February, 1890, and when the call was
made the agreement between himself and
Ward and Coronel was discussed. He
said to Marais that he supposed the latter knew
that himself and Coronel had an interest in the
property with Ward, and Marais said yes, that he
knew all about it. He then asked Marais for the
diagrams of the property, and Marais said he had
not got them. Witness subsequently found that
the diagrams were at Bloemfontein, from which
place he got oopies. Marais asked witness what
the parties to the agreement were going to do with
the property, whereupon witness replied that it was
intended to work the Oliphantsf ontein mine. Soon
afterwards work was started under-thc supervision
of Ward, and witness went down and stayed on
the property seven or eight days, in order to form
an opinion as to the worth of the property. Wit-
ness left Kimberley on the 18th of June, 1890, for
Pretoria, where he had been since. When he left
Ward was ill, and work on the mine had practic-
ally ceased. Witness had before that made some
efforts to dispose of the property in London.
Before leaving he called on Ward, and asked him
from time to time to inform witness of how things
were going on, and he promised to do so. He was
not made aware, until October, 1890, that Corcnel
had obtained any renewal of his note, and never
had felt or accepted the slightest responsibility
npon CoroneTs note. Since the time of his
leaving Kimberley he had never been informed
by Ward of the finding of any diamonds in the
mine.
C ress examined by Mr. Juta; Coronel had a
large account at the bank of whioh witness was
manager. He introduced Coronel to Ward, and he
and Corenel agreed to raise £6,000 on condition
that each received one quarter-share in the rights
of Ward. The bank was to advance Coronel a sum
of money upon his account, and then the question
arose as to whether Marais would take £8,000 in
cash and £2,000 in a note by i Coronel. He had
nothing to do with that personally. It was a
matter between Coronel and Ward, but he knew it
was being done. The De Beer's Company had a
large account at the Cape of Good Hope Bank.
He was not aware that he oould not appear publicly
Y
in the transaction. He was not aware that if De
Beer's had become aware that he was interested in
another diamond-mine he would have, been hauled
over the ooals, or that De Beer's would in such an
event have withdrawn their large account. That
oould not have weighed with him under any cir-
cumstances, because at that time he was going to
leave the Cape of Good Hope Bank. He was not
aware that in Colonel's agreement there was no
mention of his (witness's) name. If Mr. Ward
were to say that his name was kept out purposely
he would deny it. If Mr. Ward swore that the
promissory note was signed by Coronel simply to
keep out witness's name from the transaction,
he would swear that was not the case.
He had nothing whatever to do with Coronel's
promissory note, which was no obligation of his.
As manager of the bank, witness allowed Coronel
to overdraw his account. The £8,000 was paid to
Ward when the bank allowed the overdraft. The
£8,000 cash and the £2,000 on the promissory note
represented the £5,000 whioh he and Coronel
agreed to pay for two fourth-shares of Ward's
rights in the mine. He paid Coronel his £1,600
on January 24, 1890, by cheque. He had not yet
paid the remaining £1,000, but Coronel had a
private arrangement of his own with Ward*
Ward had received witness's full share of £2,500,
witness having borrowed £1,000 from Coronel in
order to complete the payment. He borrowed the
£1,000 from Coronel on January 16, 1890. There
was only a verbal arrangement, and Ward was not
present when it was made. Witness arranged it
in the Kimberley Club. Coronel then agreed to
make up the full amount due from witness, who
was to have no liability on the promissory note.
If Coronel said he was liable on the note he would
state that it was not so. On the 26th of June,
1890, he wrote to Ward stating that as he had not
sold his interest he could not pay anything to
Marais, but he thought Coronel should get the bill
held over for a time. Ward wrote him a letter
dated the 80th June, but he oould not produoe it*
He believed it had been destroyed. He oould
not say what the letter was about. He oould
not say if Ward in the letter asked him to
provide for the bill, but such might have been
the case. About that time he wrote to Ward
that he would not take less than £4,000 for
his share. He knew that Coronel's bill fell due
in July, and he had been communicated with by
Ward on the subject, but he did not reply to
Ward, although he oould then have paid £1,000.
If Coronel had then asked him f er the money he
should have paid it. Ward wrote him on the 15th
of September to the effect that unless the bill lor
£2,000 was met when it fell due — a renewal having
been obtained — Weasels would not renew again.
In October Ward wrote him that unless the bill
signed by Coronel was met by the 16th of that
162
month he should hold him liable, and cancel, to all
intents and purposes, the agreement in which
witness was interested. To that letter he sent no
answer, although he was then in a position to pay
the £1,000. He did not even communicate with
Goronel on the matter, and he never communi-
cated with Ward until the Wesselton Mine was
discovered. Ward had given him to understand
that the agreement in which he was interested was
forfeited, but he took no notice, knowing that
Ward could not forfeit it. It was never agreed
that witness and Coronel, or witness alone, should
advance £1,000 for the working expenses of the
mine. Ward was to work the mine. The raising
of the money was Ward's business, not his. Ward
told him that he had simply to work the mine, and
it would pay itself as he went along. Ward
banked with the Cape of Good Hope Bank,
where his aocount was overdrawn, but he
had securities against the overdraft. He
had heard that Ward possessed a lien on
certain claims in the Du Toit's Pan Mine, but it
was never agreed that upon the security of those
claims witness should advanoe £1,000 for working
expenses of the mine. Ward informed him that
the Mining Board owed him a sum of money upon
an action, and that he was waiting for that in order
to work the mine. In the meantime, however, it
was not agreed that witness should advance any
money for working expenses. He did not answer
Ward's letters of September and October, for the
reason that he never for one moment recognised
any liability upon Coroners promissory note. He
took legal opinion in Pretoria, and was quite con-
tent to rest upon his contract* The agreement
with Coronel was that the latter should ask witness
for the money, and if Coronel had asked for the
money in September last witness could easily have
paid it, and would have done. He knew that
Coronel had not paid Ward the £2,000, and yet,
knowing that, he did not choose to communicate
with Coronel. On the 14th January, 1891, having
heard of the discovery of the Wesselton Mine, he
Wrote to Ward asking him to put the property in
his bands for Bale. In February, Ward wrote to
him that the agreement in which witness was
interested had become null and void. Witness had
sold hie interest in the mine for £5,000, of which
be had received £2,600, and was to receive £2,500
mere when that case was over. He had sold to a
Mr. Imroth, in February this year, and Mr. Imroth
was paying all legal oharges in connection with
witness's interest. The sale to Imroth had been
due to a suggestion by Coronel.
Cross-examined by Mr. Searle : He only met Mr.
Marais once. His memory was not at fault about the
date, which was long before June, 1890. He knew that
because he left Kimberley in June, and he saw
Marais long before he left Kimberley. Marais
was mistaken ; if he said the interview only lasted
five minutes he was wrong. It lasted fifteen
or twenty minutes. He saw Marais in February.
He did not atrsume when he saw Maiais that the
latter knew nothing of the agreement to which
witness was a party, for the simple reason that he
knew Marais knew all about it. He knew that
because Coronel told him, not of his own know-
ledge. He did not know as a fact that Marais
never transacted any important business without
consulting Weasels. He knew that Marais and
Ward went down to Wellington to get from
Wessels an extension of time, in which witness
was to have an interest. He neverj loommunioated
with Marais or Wessels after the interview with
the latter on the farm. He did not suppose that
Mr. Wessels was going to let the refusal run on
for ever and ever. He knew that by a certain
time a certain sum had to be paid. That money
was not paid, but he took no action. It was not
that he let the thing slide. He simply rested on
his oontract, and was satisfied with his position.
He had heard since that other people claimed an
interest in the property.
Re-examined by Sir T. TTpington : Coronel and
he paid £25 between them as a share of the
expenses of the journey of Marais and Ward to see
Wessels at Wellington. When the promissory
note fell due the only notice he reoeivedwas in the
Bhape of the letter from Ward.
Mr. Searle : Mr. Ward handed to Mr. Marais a
promissory note signed by Coronel and endorsed
by Ward.
The plaintiff, Solomon Hyam Coronel, examined
by Mr. Solomon, Q.C., deposed that he was a
broker living at Johannesburg, but in December,
1889, resided in Kimberley. He was a customer at
the Cape of Good Hope Bank, where he kept a
large account. He remembered that in January,
1890, Lawrence spoke to him about the Wesselton
property, and Ward afterwards came and spoke to
him on the subject. Afterwards, at Ward's
request, he met Marais at Ward's house. When
Ward had explained the matter to him he said
that the further refusal for nine months was too
little, and that it should be got for two years. He
also said that the purchase price of £200,000 was
unduly large, and should be lowered to £160,000.
Ward agreed to let Lawrence and witness each
have a quarter-share in the property
for £6,000. As the result of negotiations
with Marais, the latter agreed to an ex-
tension of time for eighteen months, and that
the purchase price should be £176,000. The first
arrangement was that Lawrence and he should pay
£2,000 oash and £3,000 on a note, but Ward was
not satisfied with that, and in the end Lawrence
and he agreed to pay £8,000 cash and £2,000 on a
note, and he was almost sure that when Ward was
handed the £8,000 in witness's office Marais was
also present That was on the 16th January, 1890,
163
bat he did not go and inspect the property then.
The note for £2,090 fell due in July, 1890, and was
then renewed for £2,080, with interest at 6 per cent
Afterwards Ward asked him for the money, and he
promised to try and find it, but at the same time
stuck to it that his right did not expire till July,
1891. In the end witness did not meet the bill.
In November, 1890, when a diamond was dis-
covered on what was now the Wesselton Mine, he
went to Ward and said that it was strange he had not
been told of the find. Ward then replied that
witness was oat of the thing altogether, because he
had not paid the note for £2,000 which he had
signed. Witness said that was very hard, where-
upon Ward replied that witness could " stand in "
a quarter of his (Ward's) share. Witness said he
did not want that, but would maintain his
own interest in the mine. He never for one
moment agreed to oanoel the agreement. When
he went to Johannesburg, he asked Ward to keep
him posted how things were going, and he
promised to do se, but did not. It was arranged
between himself and Lawrence that witness should
pay £2,500 in full settlement for Lawrence's
quarter-share. Afterwards witness oeded his
right in the mine to the liquidators of the Gape
of Good Hope Bank, to which institution he was
a debtor for £40,000. When Ward heard of that,
he said witness should have gene to him, and he
would have given him more than £40,000 for his
share.
Witness, cross-examined by Mr. Juta, stated
that Mr. Lawrence, late manager of the Kim-
berley branch of the Gape of Good Hope Bank,
advanced £3,000 of the bank's money to his
(witness's) account. He could not tell why
Lawrence's name did nqjt appear in the agreement.
He did not remember telling Mr. Lipp that
Lawrence was liable for half the amount of the
promissory note. He never spoke to Armstrong
on the subject. He knew that if the note was net
met when it became due the concession would
lapse. Armstrong never came to him about the
matter. He knew that Armstrong was working
with Vizettelly. He did not remember asking Arm-
strong, after the latter's return from England, how
the flotation was getting on. He tried to get Mr.
Lipp to advance the £2,000 and take his (witness's)
interest in the concession. After he had com-
promised with the liquidators of the Gape of Good
Hope Bank Ward told him that he would have
given him £40,000 for his share. He left for the
Transvaal early in December last, and in February
he communicated with the bank.
Cross-examined by Mr. Searle : He saw Marais
in December and remembered a conversation
between Marais, Ward, and himself about renewing
the promissory note. He (witness) first suggested the
purchase price of £175,000. He did not remember
Ward saying that if the matter went through
Wessels would reduce the price by £25,000. He
saw Marais again, but did not know if he had gone
down to see Wessels. He received a notice that
the note had been protested, but he did not
remember Marais telling him that Wessels only
knew Ward in the matter of the concession.
By the Gourt : Neither Ward nor Marais ever
told him that if the matter fell through he would
get back his money.
Mr. William Wells, examined by Mr. Solomon,
Q.G., stated that he had known Mr. Ward for the
past eight or nine years. He remembered a con-
versation which took place between himself and
Ward in February last. Ward asked him to wire
to Lawrence for the refusal of his share in the
concession. Witness told "Ward that there was no
use in doing so, as Lawrence had already given the
refusal.
Gross-examined: He could not remember the
exact date of the conversation, but he was certain
as to its substance.
Sir T. Upington, Q.G., then read the corres-
pondence, and clesed the plaintiffs' case.
Mr. Ward, examined by Mr. Juta, stated that in
January, 1890, £5,000 was to have been paid to
Wessels. He was introduced to Goronel by
Lawrence. He subsequently had a conversation
with Goronel about the concession, and the latter
said that if Lawrence advanced £1,000 he
(Goronel) would stand in too. Lawrence's name
was not mentioned in the agreements, because the
De Beer's Company kept their account in the Gape
of Good Hope Bank, and if it were known that
the manager was interested in outside matters he
would probably lose his post. Goronel was to
give a promissory note for £2,000, so that
Lawrence's name should be kept out of the trans-
action. Lawrence instructed the attorneys to
draw up the agreements. When the note was
coming due he wrote to Goronel, telling him that
if it were not met the concession would lapse. In
consequence of a conversation which he had with
Mr. Lipp, he came down to Cape Town
and saw the liquidators of the Cape of Good Hope
Bank, but they refused to advance him the £2,000,
After his return to Kimberley he saw Mr. Marais.
and told him that he (witness) would be able to
get the £2,000. Marais then told him that he was
too late, as the concession had lapsed, and that Mr.
Haarhoff had been to him with an offer from the
De Beer's Company. Mr. Marais, however, subse-
quently told him that if the purohase price was
increased, he (witness) might be able to get a new
concession from Wessels.
Witness's examination had net concluded when
the Gourt rose.
164
SUPREME COURT.
WEDNESDAY, JUKE «4.
Before the Chief Justice (Sir J. H. De VlLLlEBS)
Mr. Justice SMITH, and Mr. Justioe
Buchanan.
OOBONBL V. WABD AND WE88EL8, AND LAW-
BBNGB V. WABD AND WB8SBLS.
The hearing of this case was resumed. The
plaintiffs were represented by Sir T. Upington,
Q.C, Mr. Solomon, Q.G , and Mr. T. L. Graham ;
the defendant Ward by Mr. Juta and Mr. Jones;
and the defendant Weasels by Mr. Searle.
The defendant Ward's examination, continued by
Mr. Juta : Before the meeting with Marais he had
made several endeavours to get the money, and had
offered an eighth of the whole concession for
£2,000. He had approached the Messrs. Armstrong
and a Mr. Gross, the latter of whom promised him
£2,000, but did not send it. Later he offered the
whole concession for £2,000, with the exception of
a small interest for himself. He did that because
he thought he should lose the concession unless he
got the £2,000. After the interview with Marais
he made certain offers. Between April and Novem-
ber he was very ill, his life being several times
despaired of. He never left the house from April
to the end of October. In December, 1890, a new
memorandum was drawn up, by which the pur-
chase price of the mine should be £200,000. He
did not acquaint Goronel or Lawrenoe with that
fact. He considered they were out of the whole
thing. Marais said at the time that he could not
grant an extension without consulting Weasels. In
January Mr. Peter Weasels, son of the defendant
Weasels, came to Kimberley, and on the 12th
January Marais wrote to him that he would accept
the renewal of his promissory note until March,
the purchase price of the mine to be £200,000
instead of £175,000. Soon after he went
to see Mr. J. J. Weasels, with Marais.
An interview took place, at which the members of
the Weasels family were present. Weasels said
that unless witness could give him more money
the concession would end. He wanted half of
whatever profit witness made out of the mine.
The result was that he was to pay £300,000 for the
farm. When he handed his own promisory note
he got that of Coronel's back again. If he had not
entered into the fresh agreement, the whole con-
cession would have been lost. He meant by that
that Mr. Weasels would have compelled him to
give it up. He had no choice in the matter.
The Wessels had a high opinion of the mine,
whioh they thought was worth a million of money.
He knew that if he could gain time he could develop
the mine and make more money out of it After-
wards he saw Goronel, bat it was untrue that
he ever told Goronel he would give him
£40,000 for his share. He had not at that
time forty pence. Everyone was suing him,
especially oertain people. The idea that he
offered Goronel £40,000 was simply ridiculous.
He would have had to give £40,000 for the £2,000
if Marais had pressed him for the cash at once.
He never mentioned £40,000 to Goronel. He had
heard the evidence of Wells. He was passing by
the door with some diamonds from the Premier
Mine. Wells said that I m roth had purchased the
share of Lawrence, and witness replied that he
had heard something to that effect. Goronel was
present when some money was negotiated for
Marais, and said nothing at all about any interest
he held. As far as possible, he endeavoured to
keep back from everybody the fact that Goronel
had an interest in the mine at all. He did not
know if Marais knew that Goronel and Lawrence
had a share in the mine. In September he wrote
to Lawrenoe asking him to raise £200 or £300, but
that was in order to work a small mine in the
Free State. There was a mistake with regard to
names. The small mine in the Free State was the
Wesselton Mine, and the mine where recently the
rich finds were made was the Premier Mine.
Whilst he was ill he sent Marais to Goronel for
money, but the latter did not seem anxious to
meet him and said he had no money.
By Mr. Searle : Mr. Marais came to him in
October, when the bill was maturing. When he
came back and said Goronel had not the
money, Marais told witness he would lose his con-
cession. It was then arranged that witness should
have an extension till December. That was
because Gross was in London, and had promised to
send witness £2,000. Marais after that came every
Monday morning for the money. He expected the
money from Gross up to January. On one occasion
he Bent Lawrenoe to Marais for diagrams of the
property. That was the only time, as far as he
knew, that Lawrenoe and Marais met. Goronel,
Lawrenoe, and himself were never together on
any one occasion. In witness's presence, Goronel
never said to Marais that he had an interest in the
mine.
By Sir T. Upington: The £176,000 agreement
was considered as cancelled when the bill of
Goronel was not paid. He had no writing
from Marais to prove the cancellation of
the agreement. There was no necessity for
such writing, the cancellation having been verbal.
There was no document showing the extension of
time from October, 1890, to December, 1890, the
arrangement with Marais having been verbal. He
meant to say that when he received a letter from
Marais, in January, 1891, the agreement to July,
1891, had been cancelled. He first went into ooou,-
105
nation of the land upon which the mine* were in
1886 or 1887. During the whole of the time
except when he was ill, he continued working at
the mine. When he was ill Ooronel and Lawrence
promised to pay the wages of a man to look after
the mine, hut they paid one week and then stopped.
After November, 1890, he gave out four con-
cessions to the Armstrongs, Clarkson and Kimball,
and Rouaeouw and Wallater. Those concessions
would end at the close of the present month.
From January 20 to June 19, 1891, he gave the
right of prospecting to Caprisous, the prospector
who found the mine. He decidedly differed from
Coronel when he said that Marais, Coronel, and
himself ever discussed the latter's interest in the
mine, !■«*«■ took down no terms in writing-
The expression, " taken down by Mr. Marais,"
meant that Marais took down the conditions to
Weasels at Wellington. There was a considerable
correspondence with Vizetelly in London, and
Lawrence assisted in carrying on that corre-
spondence under witness's dictation daring the
time of his illness. The only thing
Marais knew was that Lawrence and Coronel
were assisting witness to find the money.
The terms upon which:that money was f onnd was wit-
ness's business, not Marais'. He admitted that when
he saw Wells and the latter referred to Lawrence's
claim he did not at once deny that any such claim
existed. He could give no reason why he did not
deny it, but he did not. The meeting between
Marais and Coronel was simply a matter of intro-
duction. He had to introduce Coronel to Marais,
bat they did not discuss matters at all. He simply
said to Marais that Lawrence and Coronel were
helping him with money, but he was not sure
if Lawrence was specifically mentioned by
name. The introduction took place in witness's
house, and its only object was to show Marais that
there was really a person in existence who would
lend him the money. At one time he offered the
whole concession for £2,000, providing a sixth of
the profits were given him. When he met Lloyd
the latter knew that Lawrence had to find theimoney
he owed. He offered an agreement to Lloyd, whioh
he had no objection to show to the Chief Justice,
bat he would not show it to counsel in the present
delicate state of affairs. He saw Lipp, the
manager of the Kimberley branch of the Cape of
Good Hope Bank, in November last about the
business. In February, 1891, the business was
introduced to Colonel North, but he answered that
he was only dealing in nitrates. The
people in Europe did not refuse to take
up the property unless there was an
extension of time. At the time of the agreement
with Lloyd the agreement with Wessels
had not been cancelled. Diamonds had been
found at the mine. He had disposed of some, but
bad rendered no account to either Lawrence or
Coronel. He had kept an account, however. The
mine was not so payable, he had said upon oath, as
Bultfontein er Du Toit's Pan, but money could be
made out of it.
Re-examined by Mr. Juta : The extension from
October to December, 1890, had been purely by the
kindness of Marais, witness then expecting money
from Cross. Marais knew perfectly well that
witness did not want to lose the concession. There
had been constant renewals of the £5,000 since
1886 or 1887.
By Mr. Searle : Marais did not know that
Coronel and Lawrence helped to pay the expenses
of the journey to Wellington. It was not likely
that he was going to let Marais know of his
poverty. No conditions were ever taken down in
writing before Marais.
By the Court : The agreement of the 10th
February, 1891, was in force if witness paid his
promissory note on June 80. There was a former
document in existence, by whioh, unless witness
paid the £2,000 by March 81, 1891, the concession
ceased, but that document was cancelled by the
agreement of February 10, 1891. The latter
agreement cancelled all previous notes. He had
all along believed the mine would give good finds,
and he would have given almost anything before
losing the concession. He had not considered that
he could cancel the agreement with Coronel and
Lawrence without repaying them the £3,000. He
was always willing to repay the money, if he
had it. He had paid Wessels £8,000, and had
spent £7,000 in working the mine. When Wessels
said that the agreement would be cancelled he did
not tender witness the £8,000 he had paid. The
promissory note was to be given by Coronel.
Lawrence's name was to be kept out of the trans-
action. He was bank manager, and in that capa-
city would allow Coronel's account to be overdrawn.
The real reason, however, was because if
Lawrenoe's name appeared De Beer's would
approach the bank and perhaps withdraw their
account. De Beer's Company greatly objected to
anyone who had anything to do with the company
interfering in other mining ventures. When he
went to Mr. Rhodes and asked for some debris-
washing it was refused him because of his connec-
tion with the mine. He was certain that in any
eveut he would have to pay £800,000 or lose the
mine. The Wessels family had been offered
£250,000 for the mine, he believed by De Beer's
themselves.
Mr. Solomon : There is not a word of truth in
that.
Charles Lipp, the present agent of the Cape of
Good Hope Bank liquidators at Kimberley, gave
evidence, examined by Mr. Juta, that he knew
Coronel, and made certain investigations regarding
the £2,000 promissory note given by him. The
impression oonveved to his mind was that unless
166
the bill was met the concession in whioh Coronel
was interested would drop. Ward went to Gape
Town to see the liquidators about the bill, and
when his negotiations failed witness considered the
thing at an end. Coronel had told witness that by
an understanding between Coronel and Lawrence,
the latter was responsible for £1,000 of the £2,000
due on Coronel's note.
Cross-examined by Mr. Solomon : In February,
1891, he considered the matter was revived, and it
was then his impression that Coronel was still
interested.
George Shearer Armstrong, examined by Mr.
Juta : In 1 890 he went to England in connection
with these concessions. He saw Coronel on his
return in the Diamond-market in July, 1890.
Coronel came and introduced himself as one
interested in Ward a concession, and asked witness
how things were progressing. He asked if the
money from England would be forthcoming, and
witness said he had great hopes that it would.
Coronel said that Mr. Lawrenoe owed half of the
bill, but he had no hope that Lawrence would
assist him as be also was in a fix. He saw Marais
about the end of July or the beginning of August,
and a month afterwards told Coronel what Marais
had said. He told Coronel that Marais had stated
that unless the bill for £2,000 was paid in October
it was not to be renewed, and Coronel then said he
could not pay the money, nor could Lawrenoe.
Coronel said he could not help it if the
concession lapsed, and that he looked
on the thing as worthless. On December 22,
1890, Ward offered to pay £2,000 to Marais,
but the latter said it was too late then and he
could not take it, he having reported the discovery
of the new mine to Weasels. Ward could
then get the £2,000 at any moment. He
was in a great state of mind about the
matter, he having been interested in the
mine since 1887. The day before the £2,000 was
offered by Ward Mr Haarhoff had seen Marais on
behalf of Mr. Rhodes.
Cross-examined by Mr. Solomon: He had a
share of Ward's share of the mine. When Coro-
nel and Lawrence obtained a share in the concession
witness was in England, but Ward wrote and told
him that two persons had offered to lend him
money, but he mentioned no names. He was after-
wards informed that as Lawrence had left the
bank there was no need for further secrecy.
Coronel told witness Lawrence was liable for half
the amount of the bill. He considered the agree-
ment which ended July 1, 1891, was cancelled, and
it was not true that up to December 22, 1890, Ward
worked as though the agreement were still in
existence.
Petrus Harmsen Marais, son-in-law of Mr.
Weseels, examined by Mr. Searle : He had repre-
sented Weasels iu Kimberley for some yean. All
agreements, however, were signed by Weasels,
whom he consulted upon all important points. In
December, 1889, a promissory note was falling
due by Ward. He went to Ward's house
in that month, and found Coronel there.
He was introduced to Coronel, and then Ward
said that he found great difficulty in floating the
company owing to Weasels insisting upon fifty
claims in the mine. Ward said that Weasels had
promised him £25,000 if he sold the farm for
£200,000. Lawrence's name was not mentioned on
that occasion, nor did Coronel suggest that he held
an interest in the mine, or that the purchase price
should be reduced to £175,000. Witness took
down no conditions at the interview. On the 16th
January, 1890, Ward gave witness £3,000 in the
Hon. W. Ross's office, but Coronel was not present.
The same day he met Coronel, who asked if
Weseels would recognise him if he went in the
concession with Ward. He replied that Weasels
only knew Ward in the matter. He only saw
Lawrence on one occasion, when he asked witness
for some diagrams. He had seen Coronel in Kim-
berley, and the latter told him he could not pay
his promissory note of £2,000, he not having any
money, and the share market being very depressed.
Witness further stated that after the note had
been protested, Ward came te see him and said
that Coronel had left him in the lurch, but that
Mr. Cross, who was then in London, would find
the money. Subsequently, Mr. Haarhoff came
to see him (witness) with an offer from Mr.
Rhodes. On the next day Ward and Arm-
strong came to him again about the matter,
and he (witness) told them that they were too
late Ward seemed quite surprised, and said,
surely Mr. Weasels will not refuse to renew
the concession ? Witness then suggested that he
(Ward) should make Weasels a higher effer and
that possibly the latter would extend the period of
the concession. Ward afterwards offered €200,000.
This was accepted, and the concession was renewed.
He returned Ward the old promissory note for
£2,000, and accepted a new note for £2,060.
Witness considered that he had a perfect right to
cancel the agreement. He had several better
offers since for the farms.
Cross-examined by Mr. Solomon, Q.C: In
February, 1890, he knew Lawrence and Coronel
were interested in Ward's concession, but he did
not know to what extent.
Sir T. Upington then proceeded to address the
Court, and contended that both Marais and
Weasels must have known that Coronel and
Lawrenoe were deeply interested in Ward's con-
cession, and that this knowledge was sufficient
notice whether the actual nature of their interests
was disclosed or not.
Counsel had not concluded his argument when
the Court adjourqed,
167
SUPREME COURT.
THURSDAY, JUNE 26.
[Before the Chief Justice (Sir J. H. DR
ViLLiBRS), Mr. Justice Smith, and Mr.
Justice Buchanan.]
CORONEL V. WABD AND WESSELS AND
LAWRENCE V. WABD AND WESSEL8.
The hearing of this case was resumed. The
plaintiffs were again represented by Sir T. Uping-
ton, Q.C., Mr. Solomon, Q.G., and Mr. T. L.
Graham ; the defendant Ward by Mr. Juta and
Mr. Jones, and Weasels by Mr. Searle.
Sir T. Upington continued his argument for the
plaintiff, and said that by the agreement of the
10th February, 1891, all former rights of the
plaintiffs were continued. He contended that the
Court had already laid down that the non-payment
by a purchaser of the purchase price was not
sufficient reason for the dissolution of a contract,
the onus being on the seller to sue for completion
of the purchase.
Mr. Juta, for the defendant Ward, submitted
that the plaintiffs had acquiesced in the rescinding
of the oontraot. He quoted the case of Stewart v.
Ahnelt (7 Juta, 1 17). In that oase, which was a Bale
of property at Sea Point, the plaintiff paid part of
the purchase price, and was warned that if he did
not complete the transaction by a certain time the
contract would be considered at an end. The
Court held that the subsequent behaviour of Stewart
was such that he had no intention to complete the
sale, and the case went against him, though
Ahnelt was ordered to pay back to Stewart money
he had paid on account when the promissory note
fell due. Coronel and Lawrenoe were warned
that the agreement would be cancelled, but they
were utterly unable to pay the money, and so
acquiesced in the cancellation. Ward's evi-
dence on that point was really not
contradicted, and ought to be taken as
correct. At the time plaintiffs alleged these
transactions occurred no one either in Griqualand
West or in England would have anything to do
with the mine, but now that diamonds had been
found everyone wanted a share in it. The
evidence was dear that Lawrence's story that he
had paid his £2,600 was not suoh as the Court could
accept. Lawrence's own letters proved that he had
not paid the £2,500. He contended most strongly
that Weasels had the right to cancel the agreement
when the promissory note fell due and was not
paid. The behaviour of Lawrence was all along
that of a man who believed that the concession had
lapsed upon non-payment of the promissory note.
Ward wrote to him several times at the end of
1890, when the note was maturing, and the merest
tyro, a very child, would at once have replied
that he had no further liability, he having
paid his £2,500, yet the Court was
asked to believe that an experienced bank
manager was so innocent of ordinary
business dealing as never for a moment to deny
a liability he alleged he had not. It was not until
1891, when the diamonds were discovered, that
Lawrence suddenly awoke to the fact that he was
a sharer in the interests of Ward. At the time
Ward was under the impression that unless the
£2,000 were paid the concession would be lost.
Lawrence said that he had £1,000 to spare,
yet the Court had it that he never once
offered at that time to discharge his liability, though
he was told the concession was in danger.
Mr. Searle, in addressing the Court on behalf of
the defendant Weasels, split up his argument into
three heads. The first question, he said, was as to
whether the right granted to Ward was an indi-
visible one, or divisible, and capable of being
split up so as to bind the guarantor Weasels to
these other parties. If it could be so split up, was
sufficient notice given by Lawrence and Coronel
to bind Wessels to them ? If the Court were
against him on both these points, he contended
that Wessels had a perfect right to cancel the
agreement upon non-fulfilment of the conditions,
and failure to pay the promissory note. It was
clear that the plaintiffs never for a moment
imagined they had a right against Wessels. They
set up Ward and Ward only. Marais
had never for ene moment acted in any
important matter, like this of the con-
cession of the Wesselton Mine, without in the
first place consulting Wessels, who all along kept
himself aware of the progress of the whole
transaction. The position taken up by Marais, in
his capacity as the representative of Wessels, had
been during the whole time that Wessels would
only recognise Ward in the transaction.
Counsel had not concluded his argument when
Tue Court adjourned.
SUPREME COURT.
FRIDAY, JUNE 26.
[Before the Chief Justice (Sir J. H. DE VILLIEB8,
K.C.M.G.), Mr. Justice SMITH, and Mr.
Justice Buchanan.
CORONEL V. WABD AND WESSELS AND
LAWRENCE V. WARD AND WESSELS.
The hearing of this case was resumed. The
plaintiffs were again represented by Sir T.
168
Upington, Q.C., Mr. Solomon, QC, and Mr.
T. L. Graham ; the defendant Ward by Mr. Juta
and Mr. Jones, and the defendant Weasels by Mr.
Searle.
Mr. Searle continued his argument for the
defendant Wessel*, and said that all the parties
interested clearly understood that non-payment of
the promissory note meant cancellation of the
agreement. As a fact Wessels did at one time
terminate the agreement, and acted perfectly
bona fide in doing so. The whole thing had been a
speculation on the part of these persons, and he
could not understand upon what principle Wessels
was expected to return to Ward the moneys he had
paid, seeing that he had the consideration provided
for by his contract. He quoted " Gau v. McDonald "
(Buohanan, 1874, 22), as showing that a joint
venture in a diamond-mine was lacking in the
essentials of a partnership.
The Chief Justice then gave judgment. His
lordship said that there was really no difficulty in
this case so far as it affected the defendant Ward,
who had entered into the contracts of January,
1890, with the two plaintiffs. By each of those
contracts he had ceded one-fourth of his rights
and interests in the agreement with Wessels to
each of the plaintiffs. The consideration given by
the plaintiff Lawrence was the payment of £2,500
and the consideration given by the plaintiff Coronel
was the payment of £500 in cash and a promissory
note for £2,000. Now it had been strenuously
argued on behalf of Mr. Ward by Mr. Juta that
there waB a collateral engagement between the
parties, by virtue of which the plaintiff Lawrence
was really a co-debtor upon the promissory no*e.
He did not think, even if counsel had suoceeded in
proving that collateral arrangement, that would
make any difference in the case, for such an
arrangement could not in his opinion be allowed
to influence the Court in regard to the
present case. The collateral arrangement was
dearly for the purpose of imposing upon the
Cape of Good Hope Bank, to the knowledge of
Ward, and in his opinion Ward could not take the
advantage of the imposition to which he was a
party. In his opinion the two plaintiffs, Lawrence
and Coronel, stood on exactly the same footing.
They had each paid part of the money due to
Ward. One had paid £2,500, and the other £500.
Whatever the private arrangement between Coronel
and Lawrence was, the defendant Ward was not
concerned. The Cape of Good Hope Bank might
have something to say to the action of their manager
Lawrence, but Ward had nothing to do with it ;
he having got his money was bound by his agree-
ment. So far, therefore, as the plaintiff Lawrence
was concerned, he had fully complied with the
terms of his contract. He had paid his £2,500,
and now claimed his share of the property. With
regard to Lawrence, it was said that his whole
subsequent conduct showed that, although there
was not an express cancellation of the contract,
yet there was an implied cancellation, and the
case of Ahnelt was referred to, but, as he pointed
out, the case of Ahnelt was entirely different
to the present case. In that case there had been a
small payment of £82, but notice was given that
unless the remainder of the purchase price were
paid the sale would be put an end to. No answer
was given to that, and thereupon a fresh Bale of
the property was made. The Court held that no
damages could be recovered, inasmuch as the
defendant had been left under the impression that
there had been an implied cancellation of the
previous contract, but what did the Court find in
the present case ? On the 10th February, 1891, a
fresh agreement was made by the defendant Ward
with Wessels, but before that fresh contract was
made he already had notice from Lawrenoe
that he insisted upon a compliance with
the terms of his contract. A letter had
been put in, written from Johannesburg
by Lawrenoe in January, 1891, in which he
insisted upon having hiB full benefit under his
contract with Ward. This was done before the
final arrangement was made between Ward and
Wessels. The case of Ahnelt, therefore, had really
no bearing upon the present case. Coming next
to the case of Coronel, he had paid only £500,
and no doubt his liability still existed upon the
promissory note for £2,000. It was perfectly
clear that when the note fell due he was unable
to pay, but a renewal was arranged, and when
the renewed note fell due in October it was
perfectly clear that then also he was unable to
pay. Now, the defence set up by Ward was that
inasmuch as Coronel was unable to pay, and that
notice was given to him in October, that failing
payment the whole contract would be cancelled,
therefore he was now estopped by his conduct,
and that it must be implied that there
was a virtual cancellation. His opinion was that
the conduct of Coronel would not in the
least justify the Court in implying an intention to
cancel the contract. No doubt he was unable to
pay, and said so, but at the same time he said he
was trying to raise the money, and he never by any
act, or word, or deed led Ward to suppose that he
at all relinquished his benefit under the contract,
and indeed he said that, whatever Ward said about
his being out of it, he still considered himself in
it. In 1891 he gave notioe, also sent from
Johannesburg, that he still insisted upon his rights.
Ward, having got that notice, ought te have stayed
his hand, and ought to have insisted upon the
rights he had in his contract with Wessels, as
between them. At all events, he could not say
there was a cancellation. He was justified in doing
his best for all, but he could not Bay that he
would keep this money and not tender back the
169
£3,000, but cancel the contract. In his opinion,
whatever Ward did after that was for the benefit
of all the parties to the original contract of
January , 1890. If he gained any fresh advantages
from Wessels, they were not for his benefit only,
bat also for the benefit of both the plaintiffs. In
his opinion, therefore, the judgment af the Court
must be in favour of the plaintiffs as against the
defendant Ward. There was more difficulty in
dealing with this case as it affected the defendant
Wessela. A great many very interesting legal
questions had been discussed, and he was satis-
fied of this, that if the Court came to the conclu-
sion that Ward, when he entered into the fresh
agreement, acted for the benefit of both the
plaintiffs, and that he had an implied power to do
so, then Wessela was justified in entering into the
fresh contract with Ward. No doubt the plaintiffs
would be entitled to the benefit of the fresh con-
tract, but as far as Wessels was concerned, he was
justified in implying that the powers exercised by
Ward were authorised by the two plaintiffs.
What was the position of the plaintiffs when Ward
first entered into the matter ? They were wholly
unable to pay the meney. If Weasels had gone
to extremities, Ward and both the plain-
tiffs would have been sued, and would
probably have become insolvent, and so
lost the whole benefit of the contract.
Through the action of Ward, no doubt, the price
was increased from £175,000 to £300,000, but on
the other hand, an extension of time was given
from July, 1891, to January, 1892. At the time
the fresh agreement was made there was certainly
no prospect that the plaintiffs, when July, 1891,
came round, would be able to pay for their share.
Under all the circumstances, Ward, being driven
into a corner, was justified in doing the best he
could for the plaintiffs, and Wessels was justified
in accepting his implied powers as authorising him
to act for the benefit of the plaintiffs. Therefore,
in his opinion, the plaintiffs were no longer in a
position to insist upon the benefit of the contract
of the 16th January, 1891. They might have their
rights under any fresh agreement made by Ward,
but they had not now the right to insist
upon paying £176,000 on the 1st July and
acquiring possession of the farms. They might
have a right to offer £800,000 on the 1st January,
1892, and in the meantime he presumed they would
he liable to pay the £2,000 due on the promissory
note given by Ward to Wessels. They were liable
for that, because it was not yet paid. He under-
stood that by correspondence between the parties
the time of payment had been extended from the
1st March to the 80th June, 1891, so that there
were only a few days left for the plaintiffs to pay
this £2,000 owing by Ward to Wessels. If Ward
had at once recognised the right of the plaintiffs in
regard to the fresh contract, the Court might have
Z
given judgment in Ward's favour, but he had re-
fused to allow them any benefit under the con-
tract, and he had treated the whole of the original
contract as canoelled without tendering back
any portion of the money paid him,
and therefore the judgment of the
Court must be against him, with costs.
The judgment would be in terms of the 1st, 2nd,
and 3rd prayers of the declaration. As to the 4th
prayer, it was dear that could not be granted, but
the following declaration would be made :
" Declared that the plaintiffs are entitled each to
the benefit of one-fourth of any rights acquired by
Ward, by virtue of any agreement made by him
with Wessels, with respect to the said properties.
The plaintiffs' costs to be paid by Ward, but as to
the defendant Wessels, his costs must be paid by
the plaintiffs."
[Attorneys for t^e plaintiffs, Messrs. Soanlen &
Si fret ; Attorneys for the defendant, Ward,
Messrs. Findlay <k Tait ; Attorneys for the
defendant, Wessels, Messrs. Van Zyl dc Buis-
sinne.]
SUPREME COURT.
(IN CHAMBERS).
TUESDAY, JUNE 30.
[Before the Chief Justice (Sir J. H. DK VlL-
LlEBfl), Mr. Justice Smith, and Mr. Justice
Buchanan.]
In re CHABLES BROAD.
Mr. Shiel moved for the admission as an
attorney of this Court of Mr. Charles Broad, a
solicitor of the High Court of Justice, England. —
Mr. Broad took the oaths, and was duly admitted.
In re M. E. MACKENZIE.
On the application of Mr. Sohreiner, Mr. M. B.
Mackenzie was admitted to practise as an attorney.
In re J. M. BROWN.
On the motion of Mr. Joubert, Mr. J. M.
Brown was admitted to practise as a notary public
GENERAL MOTIONS.
PETITION OF ADELINE M. BATON.
On the application of Mr. Tredgold, leave was
granted petitioner to sue by edictal citation t»
170
forma pauperis in an action against her husband
for restitution of ooujugal rights, failing which
for divorce.
IN THE INSOLVENT E8TATB OP MARTHA
G. 8. KLETN.
On the motion of Mr. Tredgold, authority was
given to the Master of the Supreme Court to
call a special meeting of creditors in the said
estate, for the election of a new trustee.
WILLIAMS V. SNOOKE.
Mr. Shiel applied for a rule nisi calling upon S.
D. Snooke to show cause why petitioner should
not be admitted to prosecute his appeal in forma
pauperis against a judgment of the Chief Magis-
trate of Tembuland.
Referred to counsel for further consideration.
HUMPHRIES V. SPENCER.
Arbitration — Award — Rule of Court — Tax-
ation.
Mr. Searle appeared for the applicant, and Mr.
Schreiner for the respondent.
This was an application to make the award of
the arbitrator in the dispute between the parties a
rule of Court. Under the 12th section of the
deed of submission it was agreed that the award
might be made a rule of Court by either of the
parties provided the other of them should not
tender to perform the award within forty-eight
hours after he should have been served with the
same, or a copy thereof. And it was further
agreed that in case suoh tender should be made the
costs of the arbitration and award should be taxed
by the taxing officer of the Supreme Court After
the forty-eight hours referred to in the deed of
submission had elapsed an offer was made on
behalf of the respondent, through his attorneys, to
pay the amount of the award and the taxed costs,
but the taxing officer refused to tax until the
award bad been made a rule of Court. The re-
spondent thr>n suggested that the costs should be
taxed by an attorney to be selected by the appli-
cant. The latter, however, declined this offer.
Mr. Schreiner, on behalf of the respondent, con-
tended that unnecessary costs had been incurred,
and that when the taxing officer refused to tax, the
offer of the respondent to abide by the taxation of
an independent attorney should have been aocepted.
The Chief Justice : The cost ot an attorney in
suoh a case would have been heavier than those
of counsel moving to make the award a rule of
Court.
The Court made the award a rule of Court with
costs.
PETITION OF PETRUS F. JOUBERT AND
OTHERS.
Mr. Searle applied for authority to amend the-
description of a certain pieoe of land, called
ground adjoining Wilgeboscu, in the district of
Middelburg, by substituting No. 1,023 for No. 123
in the order of the honourable Court of the 27th
November, 1890.
It appeared that in the will of petitioner's
father lot No. 1,023 had been referred to as lot No.
123, and this, Mr. Searle contended, was clearly a
mistake on the part of the testator, as he possessed
no such lot as No. 123.
The Chief Justice remarked that the heirs
might be interested in the matter, and that there
ought to be a judicial declaration that a mistake
had been made in the will.
The Court granted a rule nisi calling upon the
heirs to show cause why the amendment should
not be made.
PETITION OF LA VINA G. VAN HEERDEN.
Mr. Molteno applied for leave to the Master of
the Supreme Court to release the farm Kwaade
Plaats, in the district of Cradock, from the
operation of a mortgage bond passed by the
petitioner to secure the paternal inheritance of
her minor children.
It appeared from the petition that the farm in
question had been sold, but that under the bond
sufficient oth*»r security had been hypothecated to
provide for the balance still due under it.
The Court granted the Master the necessary
power to release the farm in question, on his being
satisfied that the other security referred to in the
petition was sufficient.
PETITION OF SUSANNA J. BURN.
On the application of Mr. Tredgold, the Court
granted a rule nisi (returnable on July 13) calling
upon petitioner's husband to show cause why she
should not be admitted to sue him in forma pauperis
in an action for restitution of conjugal rights.
OAPE OF GOOD HOPE BANK, IN LIQUIDATION
V. TWENTYMAN.
Mr. Schreiner appeared for the applicant
(defendant), and Mr. Searle for the respondents
(plaintiffs).
This was an application for leave to the defen-
dant in the above suit to appeal to Her Majesty in
her Privy Council from the judgment of the
Supreme Court.
Mr. Searle, on behalf of the liquidators, con-
tented to the appeal on the understanding that
sufficient security was provided.
The Court granted the application.
r
171
IN THE ESTATE OF THE LATE JOHANNES L.
VAN HBERDEN.
Mr. Searle applied for leave to amend an order
of the Supreme Court, dated 11th November, 1890,
by substituting for the ground proposed to be
acquired from one P. S. van Heerden and trans-
ferred to the minor heir ef the said estate the
remainder of lot No. 6,547.
The Court authorised the Master to inquire
into the matter, and to satisfy himself that the
rights of third parties were not interfered with.
IN THE ESTATE OF THE LATE HESTER
HOLLIDAT.
On the motion of Mr. Webber, leave was
granted to raise a loan of £135 by way of
mortgage of the landed property in the estate, for
the purpose of satisfying debts thereof.
THE DAMABALAND MINING AND EXPLORA-
TION COMPANY, IN LIQUIDATION.
Mr. Shiel presented the first report of the official
liquidator* of the above-mentioned company.
The Court ordered the report to lie open for
inspectioi for fourteen days, one publication to be
made in the Government Gazette.
STEUBEN V. THE OAPE DISTRICT WATER-
WORKS COMPANY.
Mr. Juta and Mr. Molteno appeared for the
applicants (defendants), and Mr. Schreiner for the
respondent (plaintiff).
This was an application for leave to take the
evidence de bene esse on commission of Mr. Win.
Ackermann, who is shortly proceeding to England
under medical advice.
Mr. Schreiner pointed out to the Court that his
client might be seriously prejudiced by Mr. Acker-
mann not being present at the trial, as it would be
impossible to fully cross-examine this witness at
the hearing of his evidence on commission.
The Chief Justice remarked that due allowance
would be made for that oircumstar.ee at the trial.
The Court granted the order as prayed for, and
appointed Mr. Tredgold commissioner. Costs to
be oosts in the cause.
DIGEST OF CASES.
PAGE
Account — Action for balance of — Summons
sufficiently specific — Exception — Appeal
— Case remitted — Zahn v. Dn Preez ... 114
Act 20 of 1861, 8ec. 10— Transmitting false
telegrams — Telegraph regulations— Locus
poenitentiae — Conviction quashed —
Begina v. Russonw ... ... ... 113
Act 17 of 1867 — Evidence sufficient to uphold
conviction — Regina v. Arendse ... 97
Art 18 of 1878 — Conviction under wrong
section — Regina v. Plessis ... ... 102
Act 23 of 1879, Sec. 9 — Non-compliance with
terms of section — Conviction quashed —
Regina v. Maseri & Ramsitsani ... 113
Ante-nuptial contract — Leave given to re-
gister although contract had not been
tendered for registration within pre-
scribed period — Petition of J. J. du Toit 163
Arbitration— Award made rule of Court —
Taylor k Symonds v. Schunke ...
Westhuysen v. Heyns and others 83-85
Arbitration — Award — Rule of Court — Taxa-
tion — Humphries v. Spencer ... ... 170
Arrest, writ of— Confirmation — Harris k Co.
v. Grodner — Rigal v. Grodncr ... 102
Von Below v. Tiengo — Duncan v. Tiengo ... 124
Attachment — Judgment — Rule 329. Applica-
tion for an order directing the Sheriff of
the Colony to attach account-books and
collect outstanding debts refused, there
being no precedent for such a procedure
— Louw v. Theron ... ... ... 81
Attachment ad fundandam jurisdictionem—
Standard Bank, Petition of ... ... 85
Attachment — Illegal — Messenger of Court —
Act 20 of 1856, Sec 63— Magistrates'
Court Regulations, Rule 58— Interpleader
— Action — Appeal — Myekulu v. Simkins 115
Attachment of portion of inheritance to satisfy
judgment debt — Brunner v. De Villiers 111
Attachment— Postal drafts— Rule nisi oper-
ating as provisional attachment — Von
Below v. Tiengo — Duncan v. Tiengo ... 118
Attachment of proceeds of sale in satisfaction
of judgment — Liebenberg v. Van der
Westhuysen ... ... ... 165
Bill of Exchange — Interdict — Attachment
— Teenga v. Garlick
182
PAGE
Cattle Diseases Act — No. 2 of 1881— Contra-
vention — Horses — Glanders — Investiga-
tion Board— Isolation — Destruct ion
If the persons appointed under the Sec. 2 of
the Act are of opinion that animals should
be destroyed they may have them
destroyed themselves, or they may isolate
them, but they cannot call upcn the
owner to destroy or isolate— Regina v.
Gilliome, Sen... ... ... ... 155
Commission — Sale of horse — Action — Deci-
sion of Resident Magistrate — Appeal —
Lischtly v. Strangmann ... ... 158
Company — Bank in liquidation — Private
liquidation
Application for an order fixing the time within
which claims should be proved, refused on
the grounds that as the liquidation was a
pri%ate one the Court had no i>owcr until
the parties concerned had put themselves
under the operation of the Winding-up
Act — The Wellington Bank (in liquida-
tion )•«. ••• • • • ••• ••• ® ^
Company— Bank in liquidation — Authority
given liquidators to accept certain assign-
ments in discharge of assignors 1 in-
debtedness to the bank. The Cape of
Good Hope Bank (in liquidation) ... 82
Company — Bank in liquidation — Confirma-
tion of accounts — Remuneration of
Provisional Liquidators — The Cape of
Good Hope Bank (in liquidation) ... 156
Company — Bank in liquidaton — Compromises
— Sanction of Court — Sequestration
Compromises entered between the liquidators
of a company placed under the operation
of the Winding-up Act and a debtor are
merely provisional and are not binding
agreements, until the sanction of the Court
has been obtained — The Cape of Good
Hope Bank (in liquidation) v. Deneys ...
Company — Bank in liquidation — Destruction
of books and documents — The Cape of
Good Hope Bank (in liquidation)
Company — Bank in liquidation — Writ of
execution issued in respect of calls due
on shares— The Cape of Good Hope Bank
(in liquidation) v. Pilkington ... ... 97
82
86
11
DIGEST OF CASES.
PAGE
Company — Bank in liquidation — Compromises
— The Cape of Good Hope Bank (in
liquidation) ... ... ... 99-121
The Union Bank (in liquidation) ... ... 101
Company — Bank in liquidation— Contributo-
ries — Executrix — Heirs — Liquidators —
Locus standi — Amendment of Declaration
— Prescription — Costs — The Paarl Bank
(in liquidation) v. The Executrix & Heirs
of Roux ... ... ... ... 136
Company— Bank in liquidation— Act 23 of
1861 — Sec. 13 — Execution — Insolvent
shareholder — Contributories — Past share-
holders — The Cape of Good Hope Bank
(in liquidation) v. Twentyman — The
Cape of Good Hope Bank (in liquidation)
v. Whitton ... ... ... 153-154
Company in liquidation — Sale of company's
assets — Confirmation — Proceeds to be
subject to Orders of Supreme Court —
Cape Central Railways (in liquidation) 84-110
Company in liquidation — Judgment debt —
Priority — Costs — In re the Omaruru Gold
Mining Co. (Limited)... ... ... 119
Company in liquidation — Proof of debts
allowed notwithstanding that period for
proof had expired — In re the Z«utpans-
berg Palmietfontein Estate Company ... Ill
Contract — Specific performance — "Remaining
ext?nt"— Construction — Worcester Muni-
cipality v. The Colonial Government ... 126
Costs — Counsels' Fees — Taxation — Review —
Cases— Walker v. The Cape Central
Railways, in re — Teengs v. (jarlick, in re 152-156
Costs — Demand — Rule 312 — Practice — Ap-
peal — Jones v. Cauvin k Co. ... ... 158
Curator ad litem — Minors — In an action for
damages about to be brought against
executors testamentary for negligence
in realising the landed property of the
estate the Court refused to put minors
to the expense of a curator ad litem
where the widow and the major children
were in a position to bring the action
and at the same time protect the in-
terests of the minors — In the estate of
the late J. P. Tiran ... ... ... 98
Debt — Acknowledgment of payable at bight
— Provisional eentence — Liebenberg v.
Westhuysen ... ... ... ... 102
Declaration of rights — Private railway com-
pany in liquidation — Director — Agent —
Contractor — Shares — Debentures — Pre-
ference — Registratio n — Accounts — Dam-
ages — Costs — Remuneration of Jury —
Walker v. The Cape Central Railways
(in liquidation) ... ... ... 86
Deed of Transfer — Correction of — Petition
of D. H. Olivier dt others ... ... 86
PAGE
Deed of Transfer — Authority given Re-
gistrar of Deeds to cancel errors in
same — Petition of M. C. J. Rensburg ... 156
De lunatico inquirendo — The Master v. Bux-
man . . .
146
De lunatico inquirendo — Act 20 of 1879 —
Illegal removal and detention of alleged
lunatic — Locus standi of plaintiffs — In re
Mary Arthur... ... ... ... 130
Diamondif erous farm — Use — Agreement —
Refusal of purchase — Cession — Assigns —
Promissory note — Cancellation of Agree-
ment — Exceptions — Coronel v. Ward &
Weasels — Lawrence v. Ward & Weasels 134-169
Diamond-mine — Trespass — Act 19 of 1883,
Sec. 76 — Statutory rights of owner —
Interdict — Appeal — Wilson & Hall v.
Wessels ... ... ... ... 107
Divisional Council election — Ordinance 40 of
1889, Sees. 18 and 269— Rates— Right of
voting — Owner and occupier — De Klerk
v. Marais ... ... ... ... 133
Divorce — Notice of trial — In divorce cases
the defendant should have actual notice
of the date of trial — Niehaus v. Kiehaus 138
Edictal citation — Leave to sue by — Petition
of G. Gladstone ... ... ... 86
Evidence — Commission de bene esse— Wilson
v. Wilson <fc Minnaar ... ... ... 101
Topp v. Topp ... ... ... ... 103
Farms — Subdivision and transfer of — In the
estate of the late J. B. van Zyl ... 81
The petition of C. Venter ... ... ... 81
Goods sold and delivered — Action — Promis-
sory note — Ordinance 6 of 1843, Sec. 19 —
Malicious tequestration of estate — Cross -
action — Damages — Stegmann v. Cohen
and Cohen v. Stegmann ... ... 149
Imaum or Mahomedan priest — Interference
with in performance of his duty in the
mosque by rival priest — Possession —
Interdict— Gasiep v. Salie and another ... 147
Incest — A man who marries or has carnal
knowledge of his illegitimate daughter
commits the crime of incest — Regina v.
Arends ... ... ... ... 114
Insolvency — Authority given to liquidators
of bank to sign consent in terms of
Ordinance 6 of 1843, Sec. 117— In the
insolvent estate of F. P. J. van Zyl ... 81
Insolvency — Securities — Ordinance 6 of 1843,
Sec. 30 — Where a petitioning oreditor
had omitted to put a value on securities
in his possession the Court refused to
make an order for compulsory sequestra-
tion — Stegmann v. Cohen ... ... 82
Insolvency — Election of new trustee — Prac-
tice — In the insolvent estate of D. J.
Conxadie
96
DIGEST OF CASES.
Ill
PAGE
Insolvency — Curator bonis— Where a provi-
sional order for sequestration had been
granted and a curator bonis appointed,
the Court refused to confer upon the
curator bonis the powers of a provisional
trustee pending the provisional order
being made final — The Cape of Good
Hope Bank (in liquidation) in re
Arnoltx's estate ... ... ... 99
Insolvency — Ordinance 6 of 1843, Sees. 48 and
49— Leases— Act 19 of 1864— Cession—
Locus standi of insolvent — Exception —
Amendment of Declaration — Brown &
Bate v. Green ... ... ... 125
Insolvent— Ordinance 6 of 1843, Sec. 19—
Provisional order for sequestration —
Petition unfounded, vexatious, or mali-
cious — Principal and agent — Malice —
Action for damages — Tender — Costs —
Askew v. Holler ... ... ... 128
Insolvency — Trustee — Farms — Title deeds —
Mutual will — Pro-legacy — Vested in-
terests of heirs — In the insolvent estate
of C. J. Viljoen ... ... ... 154
Interdict — N usance — Brewery refuse —
Claremont, Rondebosch and Mowbray
Municipalities v. Ohlsson's Cape Brew-
eries...
84
Landed property settled by ante-nuptial
contract — Sale — New investment— Peti-
tion of C. Atmore ... ... ... 121
Lease — Reduction of rent — Unlimited period
— New arrangement— Construction — The
Churchwardens, Dutch Reformed Church,
Aliwal North v. Green ... ... 144
Licence— Act 28 of 1883, Sees. 42, 47 and 48—
Rights of Licensing Court— Refusal to
grant licence — 190th Rule of Court — Re-
view — Miller v. The Richmond Licens-
ing Court ... ... ... ... 145
Maintenance — Application for funds in pos-
session of Master by brother of person
entitled — Locus standi of applicant —
Power of Attorney — Rule nisi — In the
estate of the late H. M. Overbeek ... 124
Mortgage — Leave given curators of estate of
lunatic to raise money by mortgage of
landed property to pay off debts due by
the lunatio — In the estate of M. A.
Hopkins ... ... ... ... 98
Mortgage Bond — Application for cancellation
>f — Rule nisi — In the estate of the late
Samodien ... ... ... 124, 156
Mortgage Bond — Cancellation of — The Cape
of Good Hope Bank (in liquidation) ... 85
Negligence — Grass fire — Damages — Com-
brinck v. Myburgh ... ... 180-135
Ordinance No. 104, Sec. 33 — Administration ac-
counts — Non-compliance with terms of
PAGE
Statute— Costs de bonis propriis — Auret
v. Executor of Haarhoff ... ... 132
Pauper — 126th Rule of Court
The Court refused to make absolute a rule nut
admitting an applicant to sue in forma
pauperis where from the surrounding
circumstances it appeared probable that
the applicant had, or could obtain,
funds sufficient to proceed with his
action in the ordinary course — Shakofsoo
v. Van Noorden ... ... ... 121
Perpetual silence — Decree of.
Where V. had threatened to bring an aotion
against L. for negligence the Court re-
fused to issue a decree of perpetual
silence against V. on the latter e under-
taking to proceed with the action within
a reasonable time — Lind v. Van der
Veen ... ... ... ... 112
Pound Ordinance— Act 81 of 1875, Sec. 3—
Contravention — Trespass — Consequential
damages— Resident Magistrate's decision
—Appeal — Staples v. Swanef elder ... 140
Practice — Pleading — Purging default — Stew-
art v. Kingon ... ... ... 101
Practice — Pleading— Bar — Security for costs
— Claim in reconvention — Judicatum solvi
— Lawrence v. Ward & Weasels — Coronel
v. Ward 6 Weasels ... ... ... 134
Practice — Decree of civil imprisonment —
Nulla bona — Insufficiency of Sheriff's
return— Bate v. Nel ... ... ... 103
Promissory note — Provisional sentence — Pay-
ment into Court
Where on an application for provisional sen-
tence on a promissory note the defendant
alleged that he had a claim for damages
against the plaintiff and prayed that the
amount of the judgment should be paid
into court to abide the result of the
action, the Court refused to accede to the
defendant's request and granted provi-
sional sentence— Stegmann v. Cohen ... 102
Promissory Note — Provisional sentence —
Arrangement entered into between
maker and payee — Holder in due course
—Notice— Stephan v. Lipsett ft Wife ... 133
Promissory note — Fixed deposit receipts —
Compensation — Cession of aotion — Pro-
visional sentence — Final judgment.
The mere fact of indorsing a non-negotiable
instrument does not per se constitute the
indorsee the legal holder unless there has
been a bona-fide cession of action.
A. cannot set off as against B. (A.'s creditor)
a debt due by B. to C, although C. con-
sents, unless C. has ceded his right of
action to A. The Cape of Good Hope
Bank (in liquidation) v. Forde <fe Oo .. 137
iv
DIGEST OF CASES.
.Tir m
PAGE
Promissory note — Provisional sentence —
Supreme Court costs — A. v. B. (Buch.
1868. p. 240) considered— Act 20 of 1856,
Sec. 35— Sluiter A Neser v. Medcalf 146
Provisional sentence — Liquid document —
Every liquid document upon which pro-
visional sentence is prayed must be
stamped — Uys v. Baartman ... ... 118
Provisional sentence — Promissory notes —
Cession — Defence — Fraud — The Union
Bank (in liquidation) v. Uys ... ... 118
Railway Restaurant licence— Act 44 of 1885,
Sec. 5 — Contravention — Conviction —
Appeal — Regina v. Logan ... ... 119.
Report — Third of liquidators — Cape of Good
Hope Bank ... ... ... ... 112
Sale — Justus error — Restitutio in integrum —
Fixtures— Broker's note — Notice — Con-
duct of vendor such as to induce vendees
to believe that they were buying articles
which had previously been sold — Tender
— Arbitration — Costs — Copeland v. Short
A Co.
141
Slander — Action for damages — Case dismissed
— Appeal — Assistant Resident Magis-
trate's judgment reversed — Boonzaier v.
Castens ... i ... ... 159
PAOB
Telegrams false — Vide Regina v. Russouw ... 113
Trustee — Appointment of to administer trust
fund constituted by ante-nuptial contract
— In the estate of the late J. B. Evans... Ill
Wagons — Contract to make — Delivery —
Acceptance — Workmanship — Action —
Preiss v. Gluckmann ... ... ... 116
Will — Mutual — Codicils — Construction —
Creation of poor fund for benefit of
needy relations — Administration — Special
case — The Dutch Reformed Church v.
The Master & South African Association 122
Will — Mutual — Fiduciary and Fidei-Com-
missary heirs— Prohibition to alienate —
Construction — Special case — Nel & others
v. Nel's Executors ... ... ... 125
Will — Codicil — Fidei-commissum — Executors
Testamentary and Dative — Bond — Gift
or loan — Shares in bank in liquidation —
Residuum — Costs — Honey borne v. Hone y-
borne ... ... ... ... 139
Winding-up Act— No. 12 of 1868— Applica-
tion to be placed under operation of — In
re the Omaruru G. M. Co. (Limited)- — 119
In re The Knysna C. G. M. Company
(Limited) ... ... ... ... 134
TABLE OF CASES.
PAGE
Albert District G. M. Co. (in liquidation), in
re ... ... 199,265
Albion Masonic Hall Co. (Limited), in
re ... 182,209,253
Anderson A Murison v. The Colooial Gov-
ernment ... ... ... ... 259
Armonr v. Murray <k St. Leger ... ... 256
Arthur M., in re ... ... ... ... 190
Barn's Executors v. Haupt ... ... 198
Barnett & Co. v. The Namaqualand Licen-
sing Court ... ... ... ... 186
Bartman v. Van Niekerk ... ... ... 228
Baxter, W. M., in re ... ... ... 258
Beckham, W., in re ... ... 188, 189
Bell, P. C M in re ... ... ... ... 241
Berrange' v. Emett ... ... ... 179
Berry, J. P., Petition of ... ... ... 234
Bevera, A., Petition of ... ... 27i, 276
Beyers, Marthinus, in re ... ... ... 265
Bond v. Bond ... ... ... ... 282
Boshoff, W. H. P., in re ... ... ... 179
Botha's Executors v. Deas Bros. ... ... 199
Botha, L. J. C, in re ... ... ... 269
Brasch v. Branch ... ... ... 215, 266
Breda's Assignees v. Edwards ... ... 263
Blister, J. R., im re ... ... ... 198
Bruwer, Minors, in re ... ... ... 187
Bnltfontein M. B. v. Armstrong and The
L. *fe S. A. Exploration Co. ... ... 192
Burger, J A., in the estate of the late ... 232
Burger's Executrix v. Burger's Executor ... 190
Burn v. Burn ... ... ... 182, 266
Butler, J., Petition of ... ... ... 234
Caffyn, R. H., in re ... ... ... 186
Cape of Good Hope Bank (in liquidation),
■*• TB mmm mpm m9m 99m 999 &±o
Cape of Good Hope Bank (in liquidation),
v. Stamper and others ... ... 178
Cape of Good Hope Bank (in liquidation)
v. Belson ... ... ... ... 183
Cape of Good Hope Bank (in liquidation)
v. Lawrence ... ... ... ... 199
Cape of Good Hope Bank (in liquidation)
v. Kxecutors of Van Lier ... 283, 273
Cape Stock Fanning Co. (Limited), in
re ... ... ... ... 233, 266, 276
Cape Town Council v. The Metropolitan and
8. P. Railway Co. ... ... 249, 253
Christie, R., in re the Minor Children of the
"*»i" ... ... ... ... ... £H
PAGE
Cilliers v. Pienaar and Wife ... 194, 201
Claremont and other Municipalities v. Ohls-
Bon's Cape Breweries ... ... ... 196
Coetzee, N. S. J., P son, in re ... ... 204
Coussmaker v. TheG. W. Board of Executors 204
Craik, J., in the estate ef the late ... ... 190
Crooks, W. J., Petition of... ... ... 232
Curtis v.Day ... ... ... ... 208
Dahl v. Van der Merwe ... ... ... 226
Damaraland M. <fe Ex. Co. (in liquidation),
•71 § 6*«« ••• ••• ••• •■• m %J\j
Davis, W. E. G., in re ... ... ... 184
De Beers Consolidated Mines (Limited) v.
Good ... ... ... ... 181
Deneys <k Baker, in re the ante-nuptial
contract of ... ... ... ... 183
Dodd, E., in the insolvent estate of ... 274
Duckitt, P. M., in re ... ... ... 266
Du Plessis, J. A., in re ... ... ... 282
Du Toit v. du Toit ... ... ... 188
Dyer, F., Petition of ... ... ... 233
Eaton v. Eaton ... ... ... 197, 232, 266
Elder's Executors v. Willey ... ... 179
Everitt, H., in the estate of the late ... 186
Fletcher & Co. v. Le Sueur ... ... 203
Geduld, M. J., Petition of... ... ... 266
Gill v. De Vries ... ... ... ... 239
Grady, J., in the insolvent estate of ... 229
Groenewald v. Botha ... ... ... 178
Groenewald's Executrix v. Bcneke... 182, 282
Gumpert, B., Petition of ... ... ... 182
Haak, L. F., in re... ... ... ... 179
Haarhoff, H C, tn re ... ... ... 189
Halkett, J., and wife, in re ... ... 189
Hall, T., in the estate of the late ... ... 198
Hatch, M. A., Petition of ... ... ... 196
Hatch v. Hatch ... ... ... ... 199
Heinemann v. Heinemann ... 201, 265
Hiddingh v. Stockdale ... ... ... 179
Hill & Paddon v. Colonial Government ... 275
Hoole, E. B. C, in re ... ... ... 189
Hugo, P. J., in the estate of ... ... 233
Imroth v. Ward ... ... ... ... 200
Imroth v. The Liquidators Cape of Good
Hope Bank ... ... ... ... 228
Jackson, T. C, Petition of ... ... 277
Jackson v. Cutting ... ... ... 178
Jansen v. Conradie ... ... ... 226
Jassiem and Others v. The Master and
Steytler ... ... ... 186, 196, 212
11
TABLE OF CASES.
Jooste v. Kok
Jordaan, S. A., in re
Joubert, P. P., Petition of
Joubert, W. A M D.aon, in re
Jukkie, I., in the estate of the late
Kanuemeyer, D. V., in re ...
Kincaid v. Nixon's Executors
Knoop, J. N. in re
PAGE
... 251
... 179
... 190
... 198
225, 266
... 274
... 224
199, 204
Knysna Divisional Council v. Kannemeyer's
Executors ... ... ... ... 179
Koller v. Abas ... ... ... ... 200
Kretschmar, E., Petition of ... ... 276
Kretzinger, J. W. and J. M., in the Insolvent
Estates of ... ... ... ... 277
Kuys and Another v. Badenhorst ... ... 179
Lamb, J. H., in re the application of ... 186
Langford, A., in re ... ... ... 179
Langford v. Marais ... ... ... 266
Lawrence <fe Others v. Ward & Weasels ... 179
Lawrence & Others v. Ward & Weasels, in re 214
Leasing, L. S., in re ... ... ... 204
Lee, W., Petition of ... ... ... 182
Le Roux, in the Insolvent Estate of ... 275
Le Roux, C. M., Petition of ... ... 275
Lippert, M. E., Petition of ... ... 253
Loan and Mortgage Agency v. Bruhns ... 198
Logan v. Carter ... ... ... ... 212
London and South African Exploration Com-
pany v. Cathypadyachy ... ... 185
Lotter v. Ndhlangalava ... ... ... 197
Loubser, M. P., Petition of ... ... 190
Louw v. Groenewald ... ... ... 212
Malan, D. J , Petition of ... ... 275, 276
Mantle, M., Petition of ... ... ... 178
MaraiB, P. S. S., in re ... ... ... 179
Marais v. Baartman ... ... ... 212
Marais v. Langford ... ... ... 234
Maritz v Delport ... ... ... ... 203
Maroney, M , in the estate of the late ... 178
Masters, J. S., in the estate of the late ... 182
McLeod, J. H., in re ... ... ... 212
McLeod, A. J., Petition of ... ... 274
Meder, H. S., in re ... ... ... 189
Mego, C. W., in re ... ... ... 228
Meiring v. Grundling's Executor ... ... 269
Meyer, N. S. Petition of ... ... ... 213
Mictiau, A., in the estate of the late ... 182
Miller, J. H., in re ... ... ... 198
Mills v. Maree ... ... ... ... 263
Mills v. Reyneke ... ... ... ... 263
Moolman, W. H., in re the minor ... ... 226
Muller, A. A., in re ... ... ... 179
Midler's Executors v. The Argus Company
(Limited) ... ... ... ... 206
Myburgh, R. H., in re ... ... ... 179
Nathansohn v. Conradie 6 Lambert ... 179
Nel <fc Tiran v. Lind & Tiran ... 204, 214, 267
Nesbitt, P. S., Petition of 275
Odendaal v. Matthee ... ... ... 179
PAGE
Oppenheim, H., in the estate of the late ... 184
Oudtshoorn Divisional Council v. Rauben-
heimer ... ... ... ... 253
Overbeek. H. M., in the estate of the late 233, 266
Paarl Bank (in liquidation), in re ... ... 215
Paarl Bank (in liquidation), v. Le Roux ... 188
Paarl Bank (in liquidation), v. Wicht ... 183
PartrWge v. Partridge ... 179, 212, 228, 232
Peters v. Peters ... ... ... 190, 212, 232
Peters v. Skead, Cowling <fc Co. ... ... 210
Pienaar, B. J., in the estate of the late ... 183
Philips v. Phillips ... ... ... 190
Piet v. Piet ... ... ... ... 190
Port Elizabeth Town Council, in re ... 233
Potgieter's Executor v Potgieter ... ... 235
Protecteur Fire Assurance Company (in
liquidation ) v . Du Pre ... ... 1 79
Regina v. Adelburg ... ... ... 191
Regina v. Blumenthal ... ... ... 268
Regina v. Booysen ... ... ... 253
Regina v. Meiring ... ... ... 226
Regina v. Prince ... ... ... 183, 199
Regina v. Putshu & Klekiso ... ... 201
Regina v. Rhenoster ... ... ... 209
Regina v. fteale ... ... ... ... 275
Regina v. Stephanus ... ... ... 275
Regina v. Swartlandzana ... ... ... 231
Rentzke, P. M., in re ... ... ... 179
Rodolf v. Van der Merwe... ... ... 214
Ross, J . W., Petition of ... ... ... 230
Ross v. Ross ... ... ... ... 266
Roux, E. C. H., in re ... ... ... 179
Sampson, T., Petition of ... ... ... 184
Savings Bank v. Beaumann ... ... 185
Savings Bank v. De Beer ... ... ... 185
Schakofsco v. Van Noorden ... ... 235
Scott v. Be vera ... ... ... ... 179
Shah of Persia Syndicate (in liquidation)
v. Froud ... ... ... ... 198
Shah of Persia Syndicate (in liquidation) v.
Smart ... ... ... ... 198
Smart, Charles W., in w ... ... ... 265
Smith v. Lategan... ... ... ... 188
Solomon v. Woolf ... ... 224, 263
Sonnenberg, H. J., in re ... ... ... 276
South African L. & M. Agency v. Baird ... 179
South African L. & M. Agency v. Bruhns ... 188
South African M. L. A Association v. Du
.l A69S1B •■• ■•• ••• • •• l*v
Standard Bank v. Robertson ... ... 212
Standard Bank v. Wylie ... ... ... 268
Stephan Bros., Petition of ... ... 190
Stewart v. Kingon ... ... ... 191
Steytler v. Hudson ... ... ... 276
Sturk 4 Co. v. Moodie ... ... ... 228
Tindall, A. G. H., in the estate of the late ... 234
Topp v. Topp ... ... ... ... 214
Trustees Van Wyk's Estate v. De Jager «t T
Others ... ... ... 179,183
TABLE OF CASES.
• • •
111
PAGE
Truter, C. J. M., Petition of ... ... 183
Truter v. Truter ... ... ... 232,234
Union Bank (in liquidation) v. Clark ... 188
Union Bank (in liquidation) v. Rubsouw ... 212
Union Bank (in liquidation) v. Hofmeyr's
Executrix ... ... ... ... 273 j
Union Bank (in liquidation) v. Watson's
Executors ... ... ... ... 269
Union Bank (in liquidation) v. Watson's
Heirs in re ... ... ... ... 274
Uys, N. P., Petition of ... ... 182, 189
Van der Byl A Co. v. Rode ... ... 178
Van der Byl & Co. v. Zuidmeer ... ... 232
Van Heerden, J., in the estate of the late 199, 212
Van Zyl, G. J , in re ... ... ... 265
Van Zyl, W. J., in the estate of the late ... 266
Van Zyl v. De Beer ... ... 196. 230
Victoria W. C. Factory, in re ... ... 260
PAGE
Viljoen's Heirs v. Viljoen's Trustee (in re
the Insolvent Estate of C. J. Viljoen) 218
Walker v. Dickson 198, 263
Walmer Village Management Board, in re ... 276
Walsh, A. H., in the estate of ... ... 188
Ward v. Gerald *fc Co 197,214,228
Warner v. Tomkin ... ... ... 188
Watson's Executors v. Wateon's Heirs ... 244
Weeber, W. D., in re ... ... ... 228
Wellington Bank (in liquidation) ... ... 181
Wheeler v. Wheeler ... ... ... 232
Wicht, J. J., in re ... ... ... 275
Widdowson, M. J., Petition of ... 199, 266
Williams v. Samuels ... ... ... 178
Woodman v. Robinson ... 178, 182, 214, 263
Wright & Co. v. The Colonial (Government ... 216
Wright & Drennan in re the ante-nuptial
contract of ... ... ... ... 178
" CAPE TIMES " LAW REPORTS.
SUPREME COURT.
(IN CHAMBERS).
TUESDAY, JULY 7.
[Before the Chief Justice (Sir J. H. DE VlLLIEBS,
K.C.M.G.), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
GENERAL MOTIONS.
PETITION OF MABTHA MANTLE.
'f Edictal citation — Leave given to sue by.
Mr. Cartons, on behalf of petitioner, moved for
leave to sue by edictal citation in an action against
her husband for restitution of conjugal rightB.
Leave was granted to sue by edictal citation —
returnable on the last day of next term — one publi-
cation to be made in the Kimberley Independent.
THE CAPE OF GOOD HOPE BANK, IN LIQUIDA-
TION V. STAMPER AND OTHERS.
Company — Bank in liquidation — Act 23 of
1861, sections 11, 12 and 18— Act 12 of
1868, section 22— Contributories — Excur-
sion — Insolvent shareholders — Liability of
past shareholders — Deed of settlement —
Indemnity.
Mr. Jata appeared for the liquidators ; Mr.
Sehreiner appeared for all the respondents ezoept
Messrs. W. Runciman, jun., Child, and Fletcher,
and Mr. Searle for the respondent W. Runciman,
jun.
This was an application by the official liquidators
of the above bank for leave to place upon the list
of contributories the names of Mrs. F. A. Knight
and Messrs. W. Runciman, jun., J. Steytler, W. F.
Stamper, T. Child, W. W. Thompson, J. R. Reid,
W. S. Fletcher, and J. B. Paterson, in respect of
certain shares registered in the names of William
August Lippert and Jacob Pieter Deneys, of
which they (respondents) were former proprietors.
2a
Mr. Juta read the affidavit of Mr. Louis
Anthony Vintcent, one of the official liquidators,
which was to the effect :
That after realisation of all the assets of the
bank, and ezcuBSion of all present shareholders
to the full extent of their liability, namely, £30 per
Bhare, there would still be a considerable de-
ficiency.
That Lippert and Deneys are the registered
owners respectively of 245 shares and 878 shareB,
the calls on which amount respectively to £7,350
and £11,840.
That the estates of Lippert and Deneys have been
sequestrated as insolvent, and the proportion of
the net assets thereof to which the liquidators will
be entitled against the respective estates of Lippert
and Deneys will not be sufficient to meet the
bank's claims.
The said Lippert acquired 225 of his shares from
the above-mentioned respondents, viz., fifteen from
Mrs. F. A. Knight, ten from W. Runciman, jun.,
fifty from J. Steytler, twenty from W. F. Stamper,
ten from T. Child, thirty-five from W. W. Thomp-
son, thirty-six from J. R. Reid, fifteen from W. S.
Fletcher, and thirty-four from J. B. Paterson,
transfer of whioh shares was given between the
24th January and 26th September, 1889.
That the said Deneys acquired 100 of his shares
from the respondent J. R. Reid, and twenty
shares from the respondent W. S. Fletcher, trans-
fer of which was made on the 10th January, 1889.
The statutory return of the transfer of shares so
aoquired by Lippert, with the exception of nine
shares transferred to him by J. B. Paterson on the
26th September, 1889, was duly filed in the office
of the Registrar of Deeds on the 18th July, 1889,
and a similar return of the shares aoquired by
Deneys was also filed on that date.
The return of the nine shares aoquired by
Lippert from J. B. Paterson was filed on the 9th
January, 1890.
At the date of the stoppage of the bank the
fixed deposits amounted to £1,843,723 lis. lid., of
which £11,70(9 were in existence prior to the 10th
January, 1889, and still remain unsatisfied.
The defense ef J. R. Reid, one of the respondents,
appeared from his affidavit, which was read by Mr.
Sehreiner, and was to the following effect:
That the estate of Lippert was now being wound
up, that it consisted ot peld scrip and syndicate
174
■hares, for which there wag at present no sale, and
that in oonsequenoe the estate had not been
realised and liquidated.
With regard to Deneys's estate, which was also
being wound up, it consisted of scrip and landed
property, and there was every probability that a
large dividend would be paid to creditors upon the
final realisation of the estate.
That there was no liability imposed upon him
(respondent) by, and no authority under, the
Winding-up Aotof 1868 to plaoe him as a former
shareholder on the list ef con tributaries ; but
whatever his responsibility was, it arose under the
second proviso of section 18, Act 28 of 1861, for any
contracts or engagements entered into by the
bank when he was a shareholder ; but he
(respondent) said that contracts or engagements
increasing the liabilities of the bank to upwards of
one million pounds sterling were entered into by
the bank after he had ceased to be a shareholder,
and he submitted that it would not only be con-
trary to the true intent and meaning of the said
proviso, but manifestly unjust to make him
responsible for debts, and that his money should
be applied to discharge liabilities contracted by a
partnership of whioh he was no member, and
which liabilities included debts due to shareholders
from whom he had received an indemnity upon
the transfer of hie shares.
Finally, that the creditors of the bank had
already received 12s. 6d. in the £ upon their
claims, and that it appeared from the report of the
liquidators that the bulk of the gold scrip held by
the bank remained unrealised, and that the recovery
from present shareholders of the amount of calls
had not been completed.
The defence of the other respondents, also
incorporated in their joint affidavit, and read by
Mr. Schreiner, was to the effect that the estates
of Lippert and Deneys had been sequestrated,
but that there was no statement of what had been
recovered from the said estates, nor for what
sum the respondents were sought to be held liable,
and that if the present application were granted
it would have the effect of a final judgment
against the respondents for the full amount unpaid
on the shares sold by them to Lippert and
Deneys.
That the amounts required from the respondents
far exceeded the whole amount of the alleged
liabilities on the 10th January, 1889, and that the
amount of those liabilities had been already re-
duced by dividends amounting to 12s. 6d. in the
£, whioh had been paid to all creditors.
That according to the reports of the liquidators
the assets of the bank had not been realised, nor
all shareholders fully excussed, and that according
to those reports there was a prospect of still
further dividends, by whioh the liability weald be
further reduced.
That there was no specific account annexed to
Mr. Vintoent's affidavit showing the position of the
bank when the respondents sold their shares, nor
was there a certain statement or sufficient proof
that the existing shareholders would not be able
to make good the deficiency after the realisation
of the targe quantity of gold scrip held by she
bank. That until such realisation it would be
impossible to ascertain whether the present share-
holders would not be able to pay the whole ef the
liabilities; that the bank had not been fully
excussed, nor had a full and specific valuation of
the assets of the bank • been placed before the
Supreme Court.
That the liquidators should be put to rigid
proof of the amount unsatisfied before attempting
to make the respondents liable.
The liquidators speak hopefully of the realisa-
tion of the assets of the bank, and if there should
be a deficiency it is for them to show con-
clusively what part of such deficiency is attribut-
able to the debts whioh were in existence when the
respondents sold their shares.
That the respondents were denied unconditional
access to the books of the bank, and therefore
they were unable to say whether the assets were
undervalued or the liabilities overstated.
Lastly, that the account of the bank submitted
to shareholders on the 15th August, 1890, showed
a statement ending the 80th June, 18S0, and by
that statement a dividend of 6 per cent, was de-
clared in favour of shareholders.
Mr. Juta, in moving for the order, said that the
present application was founded on the judgment
of the Court in Twenty man's case (1 C.T.L.R.,
163), the only difference being that in the latter
oase Heath's estate had been finally liquidated.
Mr. Sohreiner, for the respondents, contended
that the present oase was different to that of
Twentyman's.
In Twentyman's case there had been an exous-
sion of the present shareholder, and the deficiency
had been ascertained.
In the present oase there had been no ascertain-
ment of the amount of the deficiency in either
the estate of Lippert or Deneys.
The terms ef Act 28 of 1861, section 18, had not
been complied with, and until the section had
been complied with the Court would not put past
shareholders on the list of contributories.
Respondents were not sureties ; they were sub-
ject to a defined statutory liability. Outside the
statute they could not be held liable (section 11) ;
therefore they could not be placed upon the list of
contributories.
In Twentyman's case it did not appear that a
larger sum was asked for than was required for
the debts still remaining unsatisfied, whioh were
debts when the shares were transferred. In the
present oase, on the lQth January, 1809, £11,700
m
of debts were in existence, which are still unsatis-
fied, but 12s. 6d. in the £ had been paid already,
and for the deficiency, £4,387 10s., the respondents
were now asked to pay £10,850 ; this was to com-
pel them to pay for debts for which they were not
liable under the statute.
Further, the unrealised assets of the bank, and
the sums received from present shareholders,
promised, according to the liquidators, a further
dividend or dividends, and thus again the balance
of £4,887 10s. would be reduced, and the claim on
respondents diminished.
The respondents were entitled to an exact deter-
mination of the deficiency on the call of £80, and
to a limited requisition to make good only so much
as remained then unsatisfied of the debts on the
10th January, 1889.
It was the duty of the liquidators to show how
much of the debts was due to shareholders, and the
deficiency in respect of which respondents were
liable, could only be ascertained after deducting
the claims of such creditors who were shareholders.
Mr. Searle, for the respondent W. Runoiman,
j nn , remarked that he had very little to add to
what had been said by his learned friend (Mr.
Schreiner). Counsel referred to Twenty man's
case, and to the stringent terms of the 18th section
of Act 28 of 1861.
Mr. Jut* replied.
The Court deferred judgment.
Portea (July 13th.)
The Chief Justice said that before delivering
judgment in this case the Court was anxious to
obtain some information as to whether there were
more past shareholders who ceased to be such
about the time the respondents ceased upon whom
a call was still to be made.
Mr. Jutasaid he would make the neoessary
inquiries.
The Chief Justice said that if counsel would get
some of the liquidators to come before the Court
and give evidence the Court would then proceed
to give judgment.
Mr. Schreiner asked the Court to take into con-
sideration, in giving judgment, the circumstance
that the respondents, in taking over the liabilities
of past shareholders, took over also their rights to
any future dividend paid in the liquidation.
The Chief Justice said the Court must make a
liberal allowance for assets, and also contributions
from past shareholders who ceased to be such
shortly after or about the time as respondents.
Mr. Juta asked if the evidence would be
accepted in affidavit form.
The Chief Justice said it would be better if oral
evidence were led.
Mr. Justice Buchanan said the point had been
raised because in the case of one of the respondents,
Mr. Paterson, his shares were transferred six
months after some of the others*
At a later stage of the sitting,
Mr. David Mudie, one of the official liquidators,
gave evidence. He Btated that the liquidators had,
in many cases, been forced to temporise a little,
and not drive people into insolvency if it could be
avoided. In many instances more money had been
obtained by waiting for a time. Except in the
oases before the Court, there were only two lots of
ten and fifteen shares to be dealt with in like
manner. In the case of the ten shares the holder
oeuld not pay.
Mr. Justice Smith : Do you mean you will get
nothing ?
Mr. Mudie : Nothing, my lord.
The Chief Justice : Is it definite, Mr. Mudie,
that there are no more than ten and fifteen shares
to be dealt with under the circumstances that they
were transferred in the same manner as these ?
Mr. Mudie : Yes, my lord. In the one case the
holder had sixty-four shares as an "A" share-
holder, and I believe there is no hope of getting
the calls even on those paid in full.
The Chief Justice : I see it stated that access to the
books was refused by the liquidators. Is that the
case?
Mr. Mudie said that was not so. No one who
had applied to see the books had been refused,
except in one respect, in which the liquidators
asked the Court to refuse access to the list of
shares. He might say, with regard to that, that he
mentioned to the persons in this case, in an official
manner, that if they desired at any time to see the
list oonneoted with any particular account they
might wish to examine into, it would be placed at
their disposal. No shareholder who had applied to
see the books had been refused. He had that on
the authority of those who were carrying on the
work of the bank. He knew that instructions
were given by the liquidators that anyone applying
to see the books should have every facility given
them, with the restriction imposed by the Court.
The Chief Justice : 12s. 6d. has been paid ; now,
has any further dividend been yet decided upon ?
Mr. Mudie : Not yet.
The Chief Justice : Will the funds realise
17s. 6d. in the £ ?
Mr. Mudie : I would not like to say that, my
lord.
Mr. Justice Buchanan : Do you think 16s. will
be obtained ?
Mr. Mudie : I think so, my lord.
The Chief Justice : You see we cannot call
upon these persons unless it is certain there will
be a deficiency. Do you think there will be a
deficiency of more than 2s. 6d. in the £ ?
Mr. Mudie : I cannot say, but we have no reason
to think that the dividend will reach 17s. 6d. in
the £.
The Chief Justice : Have you any reason to
think it won't ?
176
Mr. Madie : I think Be, my lord. I should not
like to say beyond 16s. in the £, which I hope we
shall reach.
The Chief Justice, in giving judgment, said : The
object of this application is to have the names of
the respondents placed upon the list of oontribu-
tories in the winding up of the Cape of Good
Hope Bank. The respondents are eight in
number, and they are sought to be held liable as
having been the former holders of 336 shares in
this bank, which at the date of the winding-up-
order were registered in the names of W. A. Lip-
pert and J. P. Deneys, who are now insolvent. As
to nine of the shares formerly held by the re-
spondent Paterson, the return of the transfer of
his shares was made to the Registrar of Deeds on
the 9th of January, 1890, and as to the remaining
shares in question the return was made on the
18th of July, 1889. At the time ot the winding-
up order the bank was indebted to various credi-
tors in respect of fixed de pop its for £1,343,723, of
which deposits to the extent of £12,700 were in
existence at the date when Paterson ceased to be a
holder of nine of his shares, and £11,700 when the
remaining respondents ceased to be shareholders.
Numerous side issues have been raised on this
application, but as they have been disposed of in
previous cases no further reference need be made
to them. The questions which 1 shall now pro-
ceed to consider are four in number, and the Jirst
is whether the respondents are relieved from
liability by the 20th section of the deed of settle-
ment, whioh provides for the discharge from
liability of proprietors whose shares have been
transferred to others. The Court has more than
onoe held that the section In question affords no
answer to creditors who seek, through the
liquidators, to have their debts paid by persons
who were partners at the date when the debts
were in existence. If, as in Hofmeyr's case (2
Juta, 866), the bank had been an unlimited one,
and there had been a reasonable probability that
the present members would be able to pay all the
debts, the Court would of course have given effect
to the 20th section, as it would have been mani-
festly unjust to call upon past members to con-
tribute under such circumstances. But seeing that
the liability of the members of the bank now
in question is limited, and that the creditors will
not be paid in full even if all members, past as well
as present, are made to contribute to the full extent
of their liability, the Court cannot allow the section
to defeat the paramount interest ot the creditors.
The second question is whether the respondents
are entitled to the benefit of payments made to
creditors, whereby their claims have been reduced
by the sum of 12s. 6d. in the £. In considering
this question, I must again point out that one im-
portant effect of an order for winding up a com-
pany under the Act of 1868 is that, after inch
order, the creditors can no longer sue the share-
holders, past or present The duty of paying the
debts pro rata ie cast upon the liquidators. For
that purpose they must cause the assets of the
company to be collected, and must recover the
deficiency from the contributor ies to the extent of
their liability. They are not, however, bound to
realise all the assets before proceeding against the
contributories, for the mere order of winding up is
a sufficient excussien of the company. Who then
are to be contributories ? Clearly, in the first
instance, the present shareholders. If it is reason-
ably clear that the assets of the company, together
with the contributions of present shareholders,
will be insufficient to meet the liabilities of the
bank, then past shareholders may be made contribu-
tories. They, however, have no greater ultimate
liability cast upon them by the Winding-up Act
than that whioh clings to them as former partners
of the concern, with the qualifications which have
been introduced in their favour by the 13th section
of Act 23 of 1861. As to the qualification which
requires excussion of the present holder of the
shares formerly held by such past holder, I shall
presently have to say a few words. Another
privilege which they enjoy at common law as well
as by statute is that they cannot be held liable for
more than the debts which existed when they
ceased to be members. If those debts have been
reduced by means of the contributions obtained
from other past members and present members
they are entitled to the benefit of the reduction.
Therefore shareholders whe ceased to be such at
the time when debts to the extent of £11,700
existed cannot be held liable for more
than if the debts had amounted to £4,387, and
shareholders who ceased to be such when debts for
£12,700 existed cannot be held liable for more than
if the debts had been £4,762. The older creditors
have no preference over the later creditors by
reason merely of the priority of their claims, but
all the concurrent creditors must share pro rata
amongst themselves. The shareholders them-
selves, however, who have ceased to be such
cannot be called upon to pay more to the
liquidators than they would have been liable
to pay to the creditors if the bank
had not been ordered to be wound up.
In deciding upon the liabilities of such past share-
holders, this Court must give effect to the common
law relating to partnership and to the Act of
1861, exoept in so far as they are inconsistent with
the later Act of 1868. The third question is
whether the respondents are entitled to ask the
Court to take into consideration the probability
that they will all be able to contribute towards
payment of the debts existing when they ceased to
be shareholders, and the further probability that
other shareholders who were such when they
ceased to be so, or became such afterwards, may
177
be able to make farther contributions to the
assets of the company. This question most also,
in my opinion, be answered in favour of the
respondents. Without taking all these circum-
stances into consideration, it would be impossible
for the Court to adjust, as it is directed by the
22nd section of the Aot of 1868 to do, the rights
of the oontributories amongst themselves. It is
quite true that if there had been no winding-up
the creditors might have recovered from any single
former member the full amount of his debt to the
* extent of such member's liability, but the main
; objects of the Winding-up Aot are to effect an
equal distribution of the available assets among all
the concurrent creditors and to provide a
machinery for levying contributions, from all who
are liable to contribute, with the least inoon-
venienoe or injustice to individuals. The rights
of creditors must of course be treated as
paramount, but if it is reasonably clear that
money paid by virtue of a call would afterwards
have to be refunded, in order to produce the re-
quisite equality among the members, the Court
ought to make the necessary reduction in the
amount of the call. In the case of Twentyman no
such reasonable probability existed, seeing that the
debts at the time when he ceased to be a share-
holder amounted to over half a million pounds,
but in the present case there appears to me every
reason why deduction should be made from the
calls to be made upon the respondents. It is not
alleged that any of them will be unable to pay, and
the liquidators themselves seem to have admitted
that further dividends to the extent of 2s. 6d. from
sources independently of contributions from past
shareholders will be paid. It is greatly to be re-
gretted that the liquidators have not been in a
position to lay before the Court a general scheme
for dealing with the past shareholders. If that
had been done we should have known whether
there are more past shareholders who ought to be
called upon to contribute with the respondents.
If there are more such past shareholders it seems
extremely probable that there will be a very
material reduction in the amount claimable from
the respondents in payment of the debts which
existed when they respectively ceased to be
members. Even the contributions from those who
ceased to be members at a later date, as well as
from present members, will have to be deducted
pro rata from the debts claimable from the
respondents as well as from debts incurred at a
later date. It is extremely diffloult for the Court,
with the meagre information before it, to make an
estimate of the amount which will be required
from the respondents in order to produce the
requisite equality among all members past and
\ present. If the matter were not so pressing, and
the time were not so dose at hand within which
execution, if it is to issue at all, can issue
f
against the respondents, I should certainly
refuse to take upon myself the duty of
making the necessary arithmetical calculations,
which belong to the liquidators. As the matter *
stands our estimate is necessarily a rough one, \
and it is made with the distinct understanding '
that if the call now made against the respondents
should prove too high they will be entitled to a
readjustment hereafter. We are of opinion that
from the call of £30 there must be deducted the
sum of £26 15s., and in respect of Patenon's nine
shares in question the sum of £25 10s. per share.
The result, stated in another way, will be that the
call will be reduced to £4 5s., and in the case of
Patenon's nine shares to £4 10s. per share. The
fourth and last question is whether the respondents
can be held liable at all until the insolvent estates
of Inppert and Deneys have been respectively
liquidated, and the dividends payable by those
estates in respect of the calls and the shares in ques-
tion have been ascertained. The Court has already
decided that the sequestration of a person's estate
as insolvent amounts to a process in the nature of
execution against his property or effects. In the
present case both Lippert and Deneys have failed
to pay anything in satisfaction of their primary
liability, and the secondary liability of the respon-
dents attaches. The original call in respect of
the shares amounts to £30 each. No portion of
that call has yet been paid by the trustees of the
respective insolvent estates to the liquidators.
Under the first part, therefore, of the 18th section
of Aot 23 of 1861, execution could issue against
the respondents for the full amount of the call,
and it is only by virtue of the subsequent provisos
of the section that the Court has felt itself justified
in reducing the amount of the respondents 1
liability to £4 6s. and £4 10s. respectively for each
share. Now, supposing that either of the in-
solvent estates should pay a dividend ef 5s. in
the £, that would still leave 15s. to be paid, and
the respondents could derive no benefit from
such payment. But supposing a dividend of
more than 17s. in the £ were paid, then
the respondent Paterson, if he has paid his £4 10s.
per share, would be entitled to a cession of action
from the liquidators of so much of the dividend
awarded on his nine shares as exceeds 17s. In the
£. In other words, if he has paid 9-60ths of the
call the liquidators would not be entitled to more
than the remaining 51-60ths, being the proportion
of 17s. to the £. In the same way those of the
respondents who pay £4 5s. per share would
be entitled to the benefit of anything
over 17s. 2d. in the £ that may be
paid as dividends by the respective insolvent
estates. It has not been suggested that either
estates will pay dividends for those amounts, or
anything approaching them, and there can there-
fore be no reason for postponing the call on the
' 1 '
m
respondents until these estates have been
liquidated. The result is that the respondents
will be placed upon the list of oontributories, bat
that in view of the small proportion of present
debts which the bank owed when they
respectively ceased to be shareholders, the
call of £30 will be reduced by the
sum of £26 16s. per share in the case of all
the shareholders except Faterson for his nine
shares. Inasmuch as a larger proportion of debts
existed -when he transferred those nine shares, the
call in respect of them will be reduoed by the sum
of £26 10s. Execution will therefore be allowed
to issue for £4 6s. per share except in respect of
Paterson's nine shares in question, for which
execution will issue against him at the rate of £4 10s.
per share. No order as to costs.
Mr. Sohreiner maintained that the respondents
were entitled to costs.
The Chief Justioe said that as to costs, the
Court thought that as the liquidators ought really
to have devised a settlement of this pussle— if he
might call it so— themselves, the respondents were
not to blame for coming into court, and each party
might fairly be called on to pay his own costs.
Mr. Justioe Smith concurred*
Mr. Justioe Buchanan concurred with the judg-
ment of the Chief Justice, though, he said, he had
arrived at the conclusion by a different process.
Under the English Companies Acts it
was laid down that a " B n shareholder
was liable unless he had transferred his
shares more than twelve months before the liquida-
tion of the company. That differed from the
Colonial Act, under which the period was two
years from the time when execution was applied
for. Under the English law the claim upon the
present respondents would not have been made
until the bank was liquidated. Looking at the
evidence whioh had been placed before the Court,
he thought that a very fair amount had been
arrived at in fixing the calls as the Chief Justioe
had mentioned. The difficulty the Court had had
to meet was to apply two Acts which were some-
what conflicting in their terms. He thought the
adjustment most fair and reasonable, and con-
curred with the judgment of his lordship the
Chief Justice. His lordship added that several
excellent authorities on the question existed, but
had not been placed before the Court. His Lord-
ship referred to the following eases: M Webb v.
Whiffin " (6 Ch., 428 ; L.R., 6 ; H.L., 71 1) and « In
re the Oriental Bank" (Brett's oase and Morris's
ease, 8 Ch., 800).
[Attorneys for the Bank Messrs. Reid £
Nephew ; Attorneys for W. Runcioian, jun ,
Messrs. Fairbridge A Arderne : Attorneys for the
other Respondents Messrs. Van Zyl and Buis-
sinne.]
In re THK ANTB-NTTPTIAL CONTRACT OF
WRIGHT AND DRBNNAN.
Ante-nuptial contract — Settled land — Sale
Leave given to vary investment.
On the application of Mr. ;Tredfold, leave
given to the trustee of the said contract to sell the
settled landed property, no investment to be made
of the proceeds except in first mortgage of landed
property, or Government securities, without the
leave of the Court.
WOODMAN V. ROBINSON.
On the motion of Mr. Graham, the Court granted
a rule nut calling upon the respondent to show
cause why applicant should not be admitted to sue
him in forma pauperis in an action for damages.
XV THE BSTATR OF THE LATH MART MARONRT.
On the application of Mr. Watexmeyer, the Court
granted an order in terms of the Master's report*
SUPREME COURT.
MONDAY, JULY ld»
Before the Chief Justioe (Sir J. H. D»
Villiers), Mr. Justioe SMITH, and Mr.
Justice Buchanan.
PROVISIONAL ROLL.
WILLIAMS V. SAMTJRLB.
Mr. Molteno moved for provisional sentenoe on
an unsatisfied judgment for £80.— Provisional
sentenoe granted.
JA0K8ON Y. OUTTONk
On the motion of Mr. Searle, provisional sen-
tenoe was granted for £28 12s. Id.
QBOBNMWALD V. BOTHA
On the application of Mr. Webber, provisional
sentenoe was granted on a mortgage bond for £260,
TAN BBR BTL AND CO. V. RODB*
On the motion of Mr. Juta, provisional sentenoe
was granted on a promissory note for £171 18s. 9d.
lift
V.
On the application of Mr. M askew, provisional
MDlemeawaa granted on an acknowledgment of
debt for £66 la. 8d., leaf £6 paid on aooomnt.
PBOTBCTBTJB FIBB ASSURANCE COMPANY, IS
LIQUIDATION Y. DU PBB.
On the motion of Mr. M askew, provisional sen-
tence was granted on a mortgage bond for £1,006
and the prop e rty declared executable.
ODBNDAAL V. MATTHEE.
Ob the application of Mr. Joubert, an order far
the provisional sequestration of defendant's estate
SOUTH AFBICAN MUTUAL LIFE ABfltTRANOE
ASSOCIATION V. DU PLB8SIS.
On the motion of Mr. Thome, provisional
sentence was granted in terms of oonsent upon a
mortgage bond for £1,760, leas £60 paid on account^,
TRUSTEES VAN WYK'S ESTATE V. DB JAGEB
AND OTHERS.
On the application of Mr. Searle, this matter
ordered to stand over pending a settlement.
BUYS AND ANOTHER V. BADENHOBST.
On the motion of Mr. Tredgold, provisional
sentence was granted on a mortgage bend for £20.
PABTBIDOE V. PARTRIDGE.
On the application of Mr. Juta, a writ of civil
imprisonment was granted en an unsatisfied i judg-
ment for £46.
SOUTH APBICAN LOAN AND MORTOAGB
AGBNOY Y. BAIBD.
On the motion of Mr. Watermeyer, the Court
ordered the final adjudication of the defendant's
estate. The provisional order was granted on the
16th June last.
BLDEB'8 BXBCUTOBS V. WILLBY.
On the application of Mr. Searle, the Court
granted provisional sentence on an unsatisfied
judgment for £66.
HIDDINGH Y. 8TOCKDALE.
On the motion of Mr. Maskew, provisional
sentence was granted for £6,760, due on a mort-
age bond of £8,000 by non-payment of interest.
HAT«AUSOHN V. CONBADIB AND LAMBERT.
On the motion of Mr. Juta, provisional sentence
was granted on a promissory note far £880.
KNYSNA DIVISIONAL COUNCIL Y.
KANNEMEYER'g EXECUTORS.
On the application of Mr. Moltene, provisional
sentence under rule 829 was granted for £72, due
in respect of rates.
SCOTT Y. BEVERN.
On the motion of Mr. Watermeyer, provisional
sentence was granted for £20 14a. 4d., work and
labour executed.
REHABILITATIONS.
On motion from the bar, the rehabilitation of
the following insolvents was granted: W. H.
P. Boshoff, 8. A. Jordaan, A. Langford, P. S. S.
Marais, A. A. Mailer, P. M. Renteke, B. C. H.
Rouz, L. F. Haak, and R. H. Myburgh.
GBNBRAL MOTIONS.
LAWRENCE AND OTHERS Y. WARD AND
WE88ELS.
Mr. Juta appeared for the applicant Ward ;
and Sir T. Upington, Q.O., and Mr. T. L. Graham
for the respondents.
This was an application for leave to the
defendant Ward to appeal to Her Majesty in Her
Privy Council from the judgments of this Court
in the said suits.
Sir T. Upington, Q.C., consented on the usual
security been given, and the Court granted the
application.
In re J. G. L. HYLAND.
De lunatico inquirendo — Funds in possession
of curator bonis — Disposal of.
Mr. Searle moved, on behalf of the curator bonis
(Mr. B. R. Syfret), for the direction of the Court
as to the disposal of funds already in his hands,
and for such further sums as may be subsequently
received.
Mr. Hylahd's case was before the Court on the
10th February last (1, C.T.L.R., p. 81), when he
was found to be mentally unfit to manage his own
affairs. The Court on that occasion appointed Mr
B. R. Syfret curator bonis of Mr. Hyland's pro-
perty, but declined to declare Mr* Hyland of
180
unsound mind. Mr. Hyland is at present an
inmate of the Valkenberg Asylum.
Mr. Molteno read an affidavit sworn to by Mr.
Hyland's brother, from which it appeared that the
former had been removed to the Valkenberg
Asylum at the instance of his wife ; that the
deponent was most anxious that his brother should
leave the asylum ; and that he (deponent)
was willing to look after and maintain his brother.
Mr. Graham informed the Court that he had
acted on the previous occasion as Mr. Hyland's
curator ad litem, and strongly opposed his being
declared of unsound mind.
The Chief Justice said that the matter would
stand over till tomorrow. In the meantime an
order would be served upon Dr. Dodds, the super-
intendent of the Valkenberg Asylum, requiring
him to produce Mr. Hyland in oourt to-morrow, at
ten a.m., together with the affidavits upon which
Mr. Hyland had been removed to, and received
into, the asylum. The question of the funds in
possession of the curator bonis could then be dis-
posed of.
Pottea (July 14)
This matter? which was before the Court on
Monday, came on for further hearing.
Mr. Giddy watched the case on behalf of Dr.
Dodds ; Mr. Searle appeared for the curator bonis,
Mr. B. R. Syfret ; and Mr. Molteno for the brother
of the alleged lunatic.
Dr. Dodds, the Superintendent of the Valkenberg
Asylum, examined by the Court, stated that he
received Mr. Hyland into the asylum on the 16th
of March last. (The witness produced the docu-
ments on the authority of which he had received
Mr. Hyland into the asylum.)
Mr. Giddy remarked that the alleged lunatic
had not been removed to the asylum under Aot 20
of 1879, and that his present detention was illegal.
It had, however, been the custom for many years to
remove persons of this class to an asylum when
they had no friends te look after them.
Mr. Justice Buchanan : Under whose authority
was Hyland removed to the asylum ?
Mr. Giddy : Under the regulations framed by
the Colonial Secretary.
Mr. Justice Buchanan : The Colonial Secretary
has no legal right to make such regulations.
The Chief Justice : This is a particularly serious
case in face of our decision on the 10th February
ast, when we found that there was not sufficient
evidence before us to justify our finding Hyland to
be of unsound mind.
Dr. Dodds, continuing his evidence, said that
Mr. Hyland was distinctly of unsound mind. He
refused to eat under a delusion that his throat was
stopped up, and were it not for very careful
watching and attention he must have died of
starvation.
Cross-examined by Mr. Molteno • He (witness)
would not have advised Hyland's going tot Hout's
Bay. He did not think the change would have
done him any good. He saw no force used when
Hyland was brought to the asylum. His condition
was such that he ought not to have been allowed
to roam about.
Mrs. A. C. Hyland, examined by the Court,
stated that it was at her request that the certifi-
cates were signed upon which her husband was
removed to the asylum. Mr. Hyland's brothers did
not come near him. Her life was in danger. One
night her husband came to bed with an open knife.
Between the 18th and 16th March her husband
developed dangerous symptoms. She did not know
that her brothers-in-law were willing to look after
her husband. She had no private means. There
were two children of the marriage, both girls, one
aged eight and the other three. She objected to
her brother-in-law Henry looking after her hus-
band, because she thought that he would be better
oared for in the asylum. She had had no quarrel
with her brothers-in-law.
Cross-examined by Mr. Molteno : She objected
to her husband's going to Hout's Bay because she
did not think that the ohange would have done
him any good. She did not tell her husband
where he was going when she took him to the
asylum.
Henry Hyland, examined by the Court, stated
that he only ascertained that his brother was in
the asylum three days after he had been removed
to that institution. He (witness) was prepared to
maintain his brother. He purpoeed, however,
leaving him in the asylum until he was better.
In answer to Mr. Molteno, witness said that he
was not aware that his brother was dangerous.
His brother did not want to remain in the asylum,
and had accused him (witness) of having sent him
there.
Mr. Hyland, the alleged lunatic, was then
examined by the Court, but he appeared to be
unable to understand any of the questions
addressed to him.
Mr. Searle informed the Court that in addition
to the sum of £240 which was in the
possession of the curator bonis there was a
further asset in the estate, consisting of house-
hold furniture, valued at about £100, and it had
been suggested that this furniture should be given
to Mrs. Hyland.
The Chief Justice, in giving jugdment, said it
was quite clear that James Hyland was of un-
sound mind, and his case was now much worse
than it was on a previous occasion The Court
would therefore declare him to be of unsound
mind, and would appoint his brother (Henry
Hyland) curator of his person. Mr. Syfret, as
curator of his property, would pay the £240 into
the hands of the Master with power from time te
time to draw such sums as might be required for the
Ui
maintenance of the lunatic, bis wile and children.
It would be understood, withoutimaking it part of
the order that Mr. Henry Hyland would be
personally responsible for the maintenance of the
lunatic, and would not remove him from Dr.
Dodds* care without that gentleman's consent. As
to the furniture, Mr. Syfret might deal with it as
he proposed, namely, leave it with Mrs. Hyland,
who proposed tq start a boarding-house. The
detention of the lunatic at the asylum was now
perfectly legal.
Attorneys for the curator bowis Messrs. van Zyl
k Buiasinne; Attorneys for Mr. Henry Hyland
PairbrJdge 6 Arderne.}
DR BKBB'8
CONSOLIDATED
V. GOOD.
MINUS, LIMITED
Lease — Lessor and lessee — Debris washing —
Tacit re-location — Interdict.
Mr. Bchreiner appeared for the company, and
Mr. Searle for the respondent.
This was an application for an interdict re-
straining respondent from continuing d^bris-
wathlng operations on the portion of the mining
area connected wish the Kimberley Mine, leased
to him by the Do Beer'sOompany. The facte of
the case are as follows : In the month of Septem-
tember, 1889, the company entered into an
agreement of lease with the respondent for the use
by him of a portion of the depositing noors in the
Kimberley Mine, for the purpose of being used by
him in connection with certain de'bris-washing
operations, then and for some time previously
carried on. by him. The . lease was for one
year, at a rental of £200 per annum, payable
half-yearly in advance, and to be renewable at the
option of the applicant company for a further
period at? the expiration of that time. The
respondent paid to the company the rent for the
said site as from the 1st January, 1890, and con-
tinued in the use and occupation thereof until
the 8rd January, 1891, when he paid to Mr. W.
Pickering, an official of the company, the sum of
£180 as and for sol months' rent reckoned from the
1st of that month. The company alleged that this
amount was received by Mr. Pickering in ignor-
ance of the fleet that the oompany had deeided not
to grant a renewal of the lease of the said site.
Subsequently, however, the company deeided to
allow the respondent to continue to occupy the said
site until the 80th June, 1891. As the respondent
still continues in possession of the site referred
to, the oompany now applied for an interdict re-
straining the respondent from continuing his wash-
ing operations, or otherwise trespassing on the
portion ef the mining area connected, with tthe
Kimberley Mine*
2b
Mr. Schreiner, for the company, contended, on
the authority of Voet (19, 2), that the lessee could
not, as in the present case, hold over as against his
landlord. Pickering had no power from the com-
pany to grant a lease, or to renew the lease, and
the receipt by him of the £100, on behalf of the
oompany, did not amount to a tacit relocation.
Mr. Searle, for the respondent, submitted that
the present ease was not one upon which the Court
would grant an interdict. The oompany had sus-
tained no damage, and their proper course was to
bring an action for ejectment.
After further argument, the Court ordered the
matter to stand over until the 81st August.
SUPREME COURT.
TUESDAY, JULY, 14.
[Before the Chief Justice (Sir J. H. DB
VILLIEBS), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
THE WELLINGTON BANK, IN LIQUIDATION.
Winding-up Act — No. 12 of 1868— Applic-
ation to be placed under operation of.
. Sir T. tXpington, Q.C., moved for an order
placing the bank under the Winding-up Act,
and appointing Messrs, J. J. de Villiers, W. A
Jouoert, and J. F. Pentz official liquidators*
Counsel said that the bank had been a perfectly
solvent concern, whose business had been taken
over by another bank. The shareholders had
passed a resolution in favour of voluntary liqui-
dation, and all that now remained was to deal
with certain outstanding bank notes, to the
value of some £466. It was also desired that the
Court would fix a date for the receipt of any
okume against the bank.
The Chief Justice said it was a very ffflmhrous
method of arriving at a simple result.
Mr. Justice Smith: Why was not the bank
placed under the Winding-up Aot at once ?
Sir T. Upisgton; I . believe the shareholders
preferred voluntary liquidation.
. The Court granted an order placing the bank
under the Winding-up Act, and appointing the
three gentlemen named official liquidators, with
the full powers. mentioned in the 16th section of
the. Act. The Court would fix the 1st of Decem-
ber, a*, the date for the reoeipt of cdsims, publica
tion in the GaMtU and tare Pearl papers.
l8g
WOODMAN V. ROBINSON.
Mr. Graham moved to make absolute the rule
niti admitting applicant to sue in forma pauperis
in an action against respondent for damages. —
Granted. Mr. Graham to be oonnsel in the case.
QBOENWALD'8 EXECUTRIX V. BENEKE.
Edictal citation — Leave given to sue by.
Mr. Schreiner moved for leave to attach ad
fundandam juisdictionem of this Court certain
landed property, described in the mortgage bond
passed by the defendant, and to sue by edictal
citation for recovery of the amount thereof.
The order was granted, personal service if possi-
ble, failing which publication in the Free State
Express. The order returnable on the hut day of
next term.
PETITION OF BERNHARD GUMPERT.
Mr. Shiel moved for an order to make absolute
a rule nisi for the registration, in petitioner's name,
of a certain erf or lot of ground, marked No. 818,
situate in the village of W aimer, in the district of
Port Elizabeth.
The order was granted.
IN THE ESTATE OF TUB LATE ANNA MICHAU.
Mr. Molteno, moved for leave to the executor
dative of the said estate to file an amended
liquidation account, and to recover the amount of
debts not proved for in the account already filed,
and of the sums paid into the Guardians' Fund to
the credit of the minor heirs, in so far as they are
liable to contribution.
The order was granted.
PETITION OF NICHOLAS FREDERICK UTS.
Mr. Schreiner moved to make absolute the rule
nisi for the registration of the title, in the name of
petitioner, of a piece of land called Lichtenberg, at
the Mossels Bank Rr*er, Cape district, measuring
69 morgen and 200 square roods, together with a
piece adjoining, in extent 2 morgen and 840 square
roods.
Mr. Searle appeared for J. P. Retief, and sub-
mitted an affidavit to the effect that the land in
question was originally bequeathed to thirty local
farmers, who authorised the applicant's father to
reside on the property, but not the applicant. The
affidavit, deponent stated, contained the views
of several ethers interested in the property. One
of the conditions upon which the permission was
given to the applicant's father was that the
property should, at all times, be under the manage-
ment of the owners or their representatives. The
ground was used as a public outspan.
Mr. Schreiner said he had no objection to the
ground being still used as a public outspan. All
bis client wanted was transfer.
Mr. Searle contended that that was what his
friend's client was not entitled to.
Mr. Giddy held a watching brief for the Govern-
ment, but said the interest of the Crown in the
land had oeased.
Mr. Schreiner said his client had erected
substantial buildings on the land, and paid all
the rates and taxes continuously. Counsel added
that he had just been informed that the death of
Mr. Uys, sen., took place thirty-six yean ago,
instead of twenty-six years as stated in the
petition. He had sent for the death notice, which
would he put before the Court.
The case was adjourned sine die for the pro-
duction of further evidence.
In re THE ALBION MASONIC HALL COMPANY
LIMITED.
Mr. Juta moved for an order placing the said
company under the operation of the Winding-up
Act of 1868, and appointing an official liquidator
thereto.
The order was granted. Messrs. W. B. Moore
and C. C. Silberbauer were appointed official
liquidators. Publication of the order in the Cape
Times and Cape Argus.
PETITION OF WILLIAM LBB.
Mr. Maskew moved to make absolute the rule
nisi for the cancellation in the Debt Registry of a
oertain mortgage bond passed by petitioner in
favour of the assignee of his estate.
The order was granted.
BURN V. BURN.
Mr. Tredgold moved to make absolute the rule
nisi admitting applicant to sue in forma pauperis
in an action for restitution of conjugal rights,
failing which for dissolution of the marriage
subsisting between the parties.
The order was granted.
IN THE ESTATE OF THE LATE J. S. MASTERS.
Mr. Graham moved for leave to the executor to
raise a loan on mortgage of the landed property
in the estate for the purpose of satisfying claims
thereon.
The order was granted*
183
1% re THB ANTE-NUPTIAL CONTRACT OF
DENBYS AND BAKER,
Ante-nuptial contract — Leave given to the
trustee to raise money on mortgage of the
settled laud to pay off claims in husband's
insolvent estate.
Mr. Schreiner moved for leave to the trustee
under the said ante-nuptial oontract to raise a lean
on mortgage of certain land and buildings at
Plumstead for the purpose of satisfying a claim of
the trustees of the insolvent estate of J. P.
Deneys in respect of property transferred to his
wife in 1890.
The order was granted.
THB CAPS OF GOOD HOPS BANK, IK
LIQUIDATION V. BEL?ON.
Mr. Schreiner moved for leave to issue execu-
tion against the Rev. W. B. Belson, in respect of
the call of £30 on 116 shares registered in his name.
The order was granted.
PETITION OF C. J. M. TBUTER.
Mr. Watermeyer moved for an extension of the
return day of the rule nut granted in this matter
to August 31, and also for leave to serve sum-
mons in the case upon respondent, at the same
time.
The order was granted.
IN THB ESTATE OF THB LATE BABBND J.
PIENAAR.
Mr. Maskew moved for an order to make abso-
lute the rule nisi for the amendment of certain
transfer deed relating to three erven in the village
of Bethesda, by substituting the name Barend
Jaoobus Pienaar for that of Barend Johannes
The order was granted.
THB PAABL BANK, IN LIQUIDATION V. WIOHT.
Company — Bank in liquidation — At 12 of
1868, section 21 — Contributory— Set off-
Execution.
Sir T. TJpington moved for leave to issue execu-
tion against Christian Lodewyk Wicht
in respect of the call of £250 on fifteen
shares registered in his name. Counsel
aaid that the question which would arise
in the case was as to the exercise of the powers
given to the Court under section 21 of Act 12 of
1868. He moved en the affidavit of Mr.
Steytler, one of the offioial liquidators. The
respondent had made reply to the demand by the
liquidators that he was willing to pay the claim on
condition that certain fixed and floating deposits,
to the amount of over £2,000, were allowed as a
set-off. The liquidators were of opinion that,
when every shareholder had been exoussed, the
bank would not pay a dividend of more than 10s.
in the £, and that the set-off could not be allowed,
inasmuch as it would amount to a preference to
the respondent.
Mr. Schreiner appeared for the respondent, and
read the answering affidavit of Mr. Wioht, to the
effect that he was unable to pay the full amount
of the call, £8,760. All that he could pay was the
difference between the claim and amount due to
him by the bank. If the liquidators drove him
Into insolvency they would lose the benefit depo-
nent offered in the event of his offer being
accepted. It would be necessary for him to make
cession of his estate in any case, but if the liqui-
dators were allowed to succeed in that application,
he would at ©nee be driven into insolvency.
Under a special financial arrangement he was
willing to pay £1,600 in hard cash, the amount of
the difference.
The Chief Justice said the only argument that
could be urged by the respondent was that it was
really for the benefit of the liquidators that their
own application should not be granted, but the
liquidators thought it necessary in the interests of
the liquidation that the set-off should not be
allowed. In the case of the Union Bank it was
clear that the existing shareholders would be able
to pay the liabilities of the bank, but in the
present case it was not denied that all the assets
and contributions would not enable the liquidators
to pay more than 10s. in the £, and it was quite
clear that a further call would have to be made.
That being so, the Court would grant the order as
prayed, though he thought it would have been to
the interest of the liquidators themselves to have
accepted the terms offered by the respondent.
BEOINA Y. PBINCE.
Appeal from the sentence passed by the Resident
Magistrate of Robertson on appellant on con-
viction upon a charge of breach of the peace.
The case was ordered to stand over to next term.
TRUSTEES VAN WYK'S ESTATE V. JAGEB AND
OTHERS.
Mr. Searle moved for judgment on a mortgage
bond for £666. — Provisional sentence.
The Court adjourned till Tuesday.
184
PETITION OF TH0MA8 SAMPSON.
Act 28 of 1883; sectious 73 and 76— Con
travention — Conviction —Fine — Review —
190th rule of Court — Exception
Application for leave to bring proceedings
under review by reason of their gross
irregularity refused on the grounds that
the exception should have been taken in
limine.
Sir T. Upington, Q.O., moved for leave to bring
under review the proceedings in the prosecution
and conviction of applicant under the Licensing
Act held before the Special Justice of the Peace
at Durbanville, on the ground of their gross
irregularity.
The fasts of the ease, which appear from the
petition, are a* follows :—
It appears that Mr. Sampson (the petitioner)
has held his licence .for twenty-two years, and
daring this period no complaint had ever been
made as to the manner in which he oondnoted his
hotel.
On Monday evening, 18th May last, three
oolonred men bought two bottles of wine whioh
they consumed on petitioner's premises and then
left. On the following morning when the peti-
tioner was occupied in doing some plastering to
his house, the Messenger of the Court accosted
him and said Mr. Horak (the Special Justice of
the Peace fer Durbanville) wished to see him at
the Court. The Messenger neither served a
summons nor cited the petitioner, nor informed
him what he was wanted for, but on his arrival at
the Court, where he found Mr. Horak sitting and
the three men who had been at his canteen the
previous evening in attendance, he was told by
Mr. Horak that he was charged with having sold a
bottle of brandy to one of the three while in a
state of intoxication, and asked if he admitted the
charge. The petitioner denied the charge, where-
upon Mr. Horak proceeded to question the three
men on the charge, whioh they affirmed, and the
Magistrate fined petitioner £6, which was paid.
Petitioner further alleged that no summons or
citation was served upon him so that he might
prepare to defend himself, nor was he asked if he
had any witnesses to produce or allowed time to
produce witnesses ; and that, though he was per-
mitted to put questions to the three men ex-
amined fot the prosecution, having no skill or
experience in the cross-examination of witnesses,
he was deprived by the summary form of proce-
dure of the opportunity of obtaining competent
legal assistance in his defence. After petitioner
had paid the fine he forthwith instructed his
attorneys in Cape Town to notify to Mr. Horak
his intention of appealing against the Judgment.
The attorneys accordingly wrote to Mr. Horak on
the 21st May to that effect, requesting at the same
time. V> be furnished- with a certified copy of the
record, for which their client would pay the proper
fee. Prior to the reoeipt by Mr. Horak of the
attorney's letter the record had been forwarded
for submission in the ordinary oeurae to the
Judge in Chambers, by whom it was returned to
the Special Justice to correct the Section of the
Aot under whioh the petitioner had been oharged.
This correction being made, the judgment was
certified in the usual form, the Jud?e not being
aware of the notiee of review before the Supreme
Court.
Sir T. Upington, Q.O., now applied for leave to
bring the proceedings under review under the
190th rule of Court on the grounds of their gross
irregularity.
Counsel detailed the facta of the cam as stated
above, and submitted that this was a matter
whioh ought dearly to be brought under review.
The Chief Justice, in giving judgment, said that
there was no place of its size where there were
more oases of drunkenness than at Durbanville,
and the applicant was, he supposed, one of those
who contributed to that by selling liquor to
persons in a state of intoxication. There was
nothing to show that any prejudice had been
sustained by the applicant. In any oase the
exception ought to have been taken in limine.
The application would be refused.
[Applicant's Attorneys, Messrs. Fairbridge &
Arderne.]
SUPREME COURT.
TUESDAY, JULY 21.
[Before the Chief Justice (Sir J. H. DE ViLLIEBS,
K.C.M.G.), Mr. Justice SMITH, and Mr.
Justice Buchanan.
In re DAVIS.
On the application of Mr. Juta, Mr. William
Ernest Gordon Davis was admitted to practise as
an attorney and notary public.
GENERAL MOTIONS.
IN THE ESTATE OF THE LATE HBBKANN
OPPKNHEIlf.
Mortgage Bond— Application for cancellation
of where bond could not be found after
death of mortgagee — Rule nisi.
Mr. Searle moved for authority to the Registrar
of Deeds to oanoel certain mortgage bond for
185
£6,000-, paesod ill favour of the detested by one
Nathan Birkenruth, now slid deceased, hypothecat-
ing eoertain farm called Soheepera Pan, in the
district of Hope Town, the said bond not being
forthcoming, and the land hypothecated being about
to be sold.
The Court granted a rule nisi calling upon all
pen as interested to thaw cause on the last day of
next term why *h# authority prayed for should not
be granted. One publication of the rule to be
made in the Government Gazette.
BA VINOS BANK V. BEAOMANN.
Mr. T. D. Graham applied for an order
authorising the Sheriff to aocept an offer ef £700,
made for certain quit-rent farm known as Jaatfon-
tein, situated in the district of Fraeerburg, the said
property having been offered for sale in execution
of a judgment of thm Court in September, 1884,
and no bid made.
It appeared from affidavit that ' the farm, which
was in extent 9,689 morgen, had origmiDy been
mortgaged for £650, but this amount had been in-
creased, by the non-payment of interest, to £900
odd ; there was also a second mortgage on the
property tor £600, but as the second mortgagee
did not appear in the proceedings, the Court did
not enter into the consideration of his rights but
granted the order an prayed for.
LOVDOK 1HD SOUTH APBJOAN BXPLOBATIQK
OOMPAJTY, LIMITED V. OATH YFAD YACHT.
Appeal — Extension of time — Leave — Act 5
of 1879, section 11 — Arrest of person ad
fundandam jvtrisdictionem .
Mr. Jnta and Mr. Searle appeared for the appli-
cants; the respondent was not represented by
counsel.
This was an application for leave to prosecute
an appeal from a judgment of the High Court
of Griqualand West, given on the 21st May last, the
time within which an appeal could be noted
having expired.
The facte of the case are as follows : It appears
that in May last Mr. J. B. Currey, the manager of
the company, caused a summons to be issued
against the respondent, who is a tenant
of the company, for arrear rent due under
a lease held by him from the company*
The summons was duly served, and the
ease set down .. for hearing on the
list May, when an exoeption was taken on
behalf of the defendant (present respondent) to
the jurisdiction of the Court, on the grounds that
the defendant was .not domiciled in the Colony. The ,
exoeption was npheldtftr the High Cjurt, and the
application for provisional sentence ' refused. Mr.
Currey thereupon reported the matter to the
Beard of Directors in London, and the Board in-
structed him to prosecute an appeal in the
Supreme Court. Mr. Currey, in his affidavit,
deposed that not being aware that his directors
would desire to appeal from the judgment of the
High Court, he failed to oumply with the provi-
sions of Act No. 6 of 1879, section 11, by noting an
appeal within twenty-one days after the judgment
had been delivered, and now prayed that leave to
bring the appeal might be given.
Mr. Juta: The question of jurisdiction is an
important one, as there are other oases of a like
nature now pending.
The Chief Justice : Was an application made to
attach ad fundandam jurisdictionem t
' Mr. Juta : There was nothing to attach exoept
the respondent's interest under the lease, and the
latter, although a jus in re, still being of an
incorporeal nature, would have been difficult
to attach.
The Chief Justioe : If the Court found that the
respondent had changed his domicile it might have
attached his person by arrest ad fundandam
jurisdictionem, as the respondent was in Kimberley
When the case was heard.
Mr. Jnta, oontinuing his argument, said that the
three months referred to by section 11 had not yet
elapsed. Counsel alao referred to the 43rd section
of the Charter of Justice, and to the ease of " Sney-
man v. Le Grange " (8 R., 26).
■ The Chief Justice, in giving judgment, said that
he assumed the Court had the power to extend the
time within whioh the company could appeal.
The company had, however, failed to appeal
within the proper tune, and in his (the Chief
Justice's) opinion no sufficient reastn had been
shown why the period should be extended. Leave
would be refused with costs.
SAVINGS BANK V. DE BBBR.
On the application of Mr. T. L. Graham, the
Court ordered an amendment of the order of Court
of the 18th June last, by substituting the name of
Friederiok Carl Johan Kramann for that of Jesse
Hill, as the bidder whose offer of £860 for
certain farm called Hawden, in the district of
Peddie, the Sheriff was authorised to accept.
JA80IBM A OTHBBfl V. THB MA8TBB *
8TEYTLEB.
IN THE ESTATE OF THB LATB ABDOL BAOMAJT.
Mr. Searle asked that this matter might be
allowed to stand over as some affidavits had not
yet been furnished,
Mr. Sohreiner consented, and the matter was
ordered to stand over, until the first day of ne*t
term,
186
IN THE ESTATE OF THE LATE HEBBEBT
EVEBITT.
Mr. Searle moved for an order directing that
the funds awarded out of the said estate to the
minor Horace Beck BSveritt, and paid into the
Guardians Fund, might be applied towards his
maintenance and education.
The Chief Justice remarked that in a matter of
this kind, where there had been an express pro-
vision in the will, the Master would have been
justified in paying out the money without an
order of Court.
The Court granted the application.
In re THE APPLICATION OF J. H. LAMB.
Mortgage bond — Omission of general claus
Amendment.
Mr. Searle moved for leave to amend a certain
mortgage bend passed by Matilda Passmore in
favour of petitioner for £1,200, by adding thereto
a clause containing a general mortgage. On the
9th June last a mortgage bond for £1,000 was
passed by Matilda Passmore in favour of John
Hudson Lamb. After the bond was received
from the Deeds Office, duly passed and registered,
it was discovered that the general clause had
through an oversight been omitted, although the
power of attorney under which it was passed
specially authorised and directed its insertion. In
order to remedy this omission it was suggested to
obtain a fresh power of attorney and pass a new
bond cancelling the previous bond, and with this
intention application was made for a refund of the
stamps on the bond, and authority for such refund
was obtained. Owing, however, to the difficulty
anticipated in obtaining a fresh power of
attorney, the method suggested for correcting
the defect in the bond was abandoned.
The authority of the Court was now asked for,
either to pass a fresh bond under the original
power to bear even date, and to take the place of
the defective one, or to amend the said bond by
adding the general clause thereto.
After argument,
The Court granted leave to the Registrar of
Deeds to consent to the insertion of the general
clause on his receiving the written consent of the
subsequent mortgagees.
In re B. H. CAFFYN.
On the application of Mr. Graham, Miss L.
Caffyn was appointed curator bonis r
BARNETT AND GO. V. THE NAKAQUALAND
LICENSING OOUBT.
Licensing Court — Act 28 of 1883, section 50
— Refusal to renew a licence which had
been held for three years — Appeal.
Notwithstanding section 50 of Act 28 of
1883 the members of a Licensing Court
can decide from their own personal know-
ledge whether the renewal of a licence
should be granted or not.
Mr. Sehreiner appeared for the plaintiffs, and
Mr. Giddy for the defendants.
This was an appeal from a decision of the
ftamaqualand Licensing Court refusing the plain-
tiffs a renewal of their licence, although they had
been in possession of it for three years.
The facts ef the case are as follows ; The Licens-
ing Court sat on the 4th March last, when the
plaintiffs applied for a renewal of their licence
which they had already held for three years.
The Court refused to renew the licence en
the petition of the Rev. Mr. Robeon,
a missionary whe lived about fifteen
miles away in a different field-cornetoy,
and who alleged that natives from his mission
station and farm servants in the district got drunk
at plaintiffs* canteen, and that a licensed house
was not required at this particular place. Some
members of Court also expressed an opinion that
there was no necessity for continuing the licence.
From this decision the plaintiffs now appealed, and
claimed a renewal of their licence and costs, tie
bonis propriis, of such members of the Court as
had refused their application.
Mr. Sehreiner contended that under Act 28 of
1883, section 60, the plaintiffs having held a
licence for three years, were clearly entitled to a
renewal.
The Chief Justice : So that, if a man is of bad
fame and character, under section 50 his licence
must be renewed ?
Mr. Sehreiner : Yes, under this section ; the
Court can always vary the conditions.
The Chief Justice referred to section 48, which
enacts that the Court may of its own motion take
notice of any matter or thing which in the opinion
of the members thereof would be an objection* to
the granting of a licence, or to the renewal,
transfer, or removal of a lioenoe, although no
objection has been made by any person. In any
such case the Court shall inform the
applicant, and shall adjourn the further
consideration of the application, should the
applicant so request, for any period not less
than four days, in order that the person affected
by such objection may be offered an opportunity of
replying thereto. The Court shall, after any sucfe
187
adjournment, give notice in writing, signed by the
president, of the cause of objection to the
person affected thereby, and of the day on which
the adjourned application will be considered.
Mr. Justice Smith inquired what the nature of
the objection was.
Mr. Schreiner read the objection, and contended
that under section 46 the Rev. Mr. Robson had
no facte* standi, as he was not a person residing
in the field-cornetcy wherein the renewal was
applied for.
The Chief Justice : There is nothing in the Act
to prevent outsiders from objecting.
Mr. Justice Buchanan : The applicants might
have applied for an adjournment under the 48th
section, but they do not appear to have exercised
their right.
The Chief Justice : Why should not the mem-
bers of the Court decide from their own knowledge
whether a renewal should be granted or not ?
Mr. Schreiner : The Licensing Court is not in a
position to determine such a question ; if it were,
what is to become of the right of renewal given by
the Act ? What protection has a man who has
held his licence faultlessly for three or mere years ?
The Chief Justice : The protection in the present
ease is that the applicants might have asked for an
adjournment. The proceedings took place in the
presence of applicant's agent, Mr. Van Niekerk.
Mr. Schreiner: The Court should have had
something before it on which to have acted.
The Chief Justice: One of the members, Mr.
Bossouw, spoke from his own knowledge.
Mr. Schreiner : Mr. Rossouw said he had seen a
petition from some of the most influential farmers
in the district against granting a renewal of the
licence, but it had not been sent in owing to the
distance these farmers lived from the Court.
Surely this was not such evidence as the Court
ought to have received.
The Chief Justice : Mr. Ressouw also remarked
that there had been a great many cases of
drunkenness at this canteen, and that on one
occasion his own life had been in danger.
Mr. Schreiner : The plaintiffs are entitled to a
renewal under section 60. The objections were
not legal, and were not supported by proper
evidence. Plaintiffs had not reoeived notice as
required by the Act The Legislature oould never
have intended to confer such powers on Licensing
Court*, that without complying with the terms of
the Act they could enter on their records a refusal
to renew a licence. What became of the title
oonferred by the Act ? The decision in this
matter would in all probability influence a discus-
sion new being carried on elsewhere. What was
the use of the vested right conferred by
section 60 if it oould be divested by section 62 ?
The Chief Justice, in giving judgment, said that
Mr. Schreiner had argued .that the plaintiffs were
entitled to a renewal of their licence under the
60th section of the Act, inasmuch as they had held
their licence for three years or upwards, but the
terms of this section were subject to the other pro-
visions contained in the Act. Section 62 enun-
ciated the objections which might be taken to the
renewal of any lioence. Strictly speaking, Mr.
Robson's objection was not sufficient ; but the
Licensing Court had acted on their own personal
knowledge, as they had a perfect right to do under
section 48— and in his (the Chief Justice's)
opinion, the Court had full powers, even though
an applicant might have held his lioence for
twenty years. If the applicants had not
had notice, the Court would have acted
illegally in not giving such notice,
but the matter had been publicly dis-
cussed in the presence of the applicants' agent,
and if he had so requested, no doubt an adjourn-
ment would have been granted. Such being the
case, he (the Chief Justice) was of opinion that
the Licensing Court had acted quite within their
rights in refusing to renew this licence on the
grounds that a licensed house was not required in
this particular neighbourhood. Further, he (the
Chief Justice) did not think it right that Courts
which had done their duty, as this Court appeared
to have done, should be harassed by proceedings of
this kind, instituted by unsuccessful applicants,
and if the Court had incurred any oosts suoh as
those between attorney and client, he would have
been prepared to have given costs against the
plaintiffs. If Licensing Courts were not protected
they would be afraid to do their duty. The appeal
would be dismissed with costs.
Their lordships concurred.
[Plaintiffs' Attorneys, Messrs. van Zyl A Buis-
Binne; Defendants' Attorneys, Messrs. Reid <fe
Nephew.]
SUPREME COURT.
(IN CHAMBERS).
TUESDAY, JULY 28.
[Before the Chief Justioe (Sir J. H. DE
Villiehs, K.C.M.G.), Mr. Justioe Smith,
and Mr. Justice BUCHANAN.]
GENERAL MOTIONS.
In re THE MINORS BR U WEB.
On the motion of Mr. Juta, authority was given
to the tutors dative to join with the co-proprietors
and the said minors in a sub-division of the quit-
rent place De Hoop, in the district of Robertson.
i68
IN THE ESTATE OF A. H WALBU.
Mr. Bearle, on behalf of the surviving spouse,
Mrs. Walsh, of Uitenhage, applied for leave, as
testamentary executrix, to raise a loan on mortgage
of the landed property in the estate for the
purpose of satisfying a claim thereon.
It appeared from affidavit that at the time of
Mr. Walsh's death he was indebted to the amount
of £800 ; of this sum £326 has been paid off by the
widow, bat there still remains a balance of £800,
made up of a bond for £200, and a promissory
note for £100. The holder of the latter is pressing
for payment, and hence the present application.
The Chief Justice remarked that the only
difficulty was the question of interest on the pro-
posed bond, the property was valued at £900, and
8 per oent. appeared to him to be a very high rate
to pay on such good security. Eventually the
Court granted the required leave, Mrs. Walsh
to make the best terms she oould with regard to
interest.
In re WILLIAM BBGKHAM.
Mr. Schreiner applied for the appoint-
ment of a curator ad litem in proceedings about
to be instituted to have one William Beckham
declared to be of unsound mind and incapable of
managing his affairs, and for the immediate
removal of the alleged lunatic to the Yalkenberg
Asylum.
Several affidavits were read, from one of which
it appeared that Mr. Beckham had within the
last few days developed dangerous symptoms,
and had actually assaulted some members of his
family.
The Chief Justice : If the alleged lunatic is
dangerous, why has he not been rjemoved under
Act 20 of 1879 ?
Mr. Schreiner : The case is exceptional. Certain
tacts were not before the Magistrate, and it is
only within the past few days that Mr. Beck-
ham has become dangerous. He (counsel) was
instructed that Dr. Dodda had refused, after
recent decisions, to- -admit patients into the
Valkenberg Asylum without an order of Court.
Under these circumstances it was deemed
advisable to come to the Court about the matter.
The Chief Justice : To do what you ask us to do
would be going out of our way to establish a
precedent, for which there is no necessity as the
Act is sufficient. An inquiry as te the state of
Mr. Beckham's mind oould be held on the first day
of next term, and in the meantime he oould be
placed under the care of a keeper. ' With regard
to the alleged objection of Dr. Dodds, what the
Court had held was that the detention of lunatics
who had not been certified as " dangerous " was
illegal.
The Court granted a rule nisi calling upon
William Beckham to show cause on the 1st August
why he should not be declared -of unsound minot
and incapable of managing his affairs, and ap
pointed Mr. Molteno curator ad litem.
SUPREME COURT.
SATURDAY, AUGUST 1.
[Before the Chief Justine (Sir J. H.
VlLLIXBS)* Mr, Justice SMITH, and
Justice BUOHANAN.1
Dsi
Mr.
PROVISIONAL BOLL.
DU TOXT V. DU TOIT.
On the motion of Mr. Maskew,' provisional
sentence was granted en a mortgage bond for £760,
less £80 paid on account. — The property specially
hypothecated was declared executable.
PAABL BANK, 12? LIQUIDATION V. LB BDDX.
On the application ef Sir T\ Upiegton, Q.O, the
final adjudication of the defendant's estate was
granted.
UNION SANK, IN LIQUIDATION V.CLABK.
Mr. Schreiner moved for provisional sentence on
four pro i seism j notes for £260 with interest. —
Provisional sentenoe granted.
SMITH T. LATBOAN.
On the motion of Mr. Searle, provisional sentenoe
was granted on a mortgage bond for £200. — The
property specially hypothecated was declared
executable.
SOUTH AFBICAN LOAN AND MOBTGAGB AOENCY
V. BBUHN8.
On the application of Mr. Tredgold the matter
was ordered to stand over for the production of
further affidavits.
WABNBB <fe GO. V. TOM KIN.
On the motion of Mr. Juta, judgment was
granted in terms of consent for £800 and taxed
oosta*
i89
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : Hendrick
Ghristoffel Haarhoff, John Halkett and wife,
Bdwaid Benjamin Cottereil Hoole, and Hendrik
Berraas Meder.
BECKHAM Y. BECKHAM.
De lunatico inquirendo.
Mr. Schreiner appeared for the plaintiffs, and
Mr. Molteno as curator ad litem for the defendant.
This was an action instituted by Mrs. Beokham
and others to have Mr. William Beckham declared
of unsound mind and incapable of managing his
person and property.
Dr. G. B. Silke deposed that he had examined
the defendant on the 21st July last, although he
(witness) had never seen the defendant before the
latter greeted him most cordially. He was labouring
under a delusion that he was engaged in a busi-
ness which was yielding a return of £10,000 a day,
and saw no reason this amount should not be
increased to £1,000,000 a day. He also talked
incessantly and incoherently. Witness was of
opinion that the defendant was of unsound mind
and incapable of managing his person and pro-
perty, and he (witness) had signed a certificate to
that effect.
Cross-examined by Mr. Molteno : He would not
say that defendant was dangerous. Exaltation of
ideas in a lunatic was generally a forerunner of
paralysis.
Dr. Scholtz corroborated the evidence of the
last witness.
Mr. William Daniel Beckham deposed that his
father was of unsound mind ; he had assaulted
witness. Cemirg down from Johannesburg
defendant was very violent and had to be placed
ander restraint.
Mr. Molteno informed the Court that he had
visited the defendant on two occasions, and was
olearly of opinion that he was of unsound mind.
The Court, after hearing the evidence, declared
the defendant of unsound mind and incapable of
managing his affairs, and appointed his eldest son,
Mr. William Daniel Beckham, curator of his
person, and Mr. H. Gibson curator of his property.
Costs to come out of the estate. *
[Plaintiffs* Attorney, C. C. de Villiers.]
1
PETITION OF NICHOLAS F. UYS.
Act 28 of 1881 — Application for registration
of title — Prescription —Rule nisi dis-
charged.
Mr. Hohreiner appeared for the applicant, Mr.
2c
Searle for the respondents, and Mr. Giddy for the
Government.
This was an application, under Act 28 of 1881,
to make absolute a rule nisi f r the registration
in petitioner's name of oeita ; n lauded properties
known as Lichtenberg, situated at the Mossels
Bank River in the district of the Cape.
Mr. Schreiner read several affidavits sworn to by
the petitioner and others, from which it appeared
that petitioner 'a father had befn overseer of the
properties in question until his death, in 1860,
from whioh time the petitioner has been in
possession of the land, and has expended consider-
able sums of money in erecting buildings, planting
trees, Ac.
Mr. Searle read the affidavits of Mr. J. P.
Retief and others, which were to the effect that
the land in question was originally bequeathed to
thirty local farmers, who authorised the applicant's
father to reside on the property but not the
applicant. One ef the conditions upon whioh the
permission was given to the applicant's father was
that the property should be at all times under the
management of the owners or their representatives.
Part of the land in question had been used as a
publio outspan. The affidavits of J. J. Malanand
D. J. Malan were also read.
Mr. J. J. Malan, in reply to the Court, said that
he was forty-four years old, and that he had lived
on the land ia dispute for thirty-three years.
After the death of old Mr. Uys, his (witness's)
father was appointed overseer. Two of the men
who had appointed his father were still alive.
Cross-examined by Mr. Schreiner : He was a
son-in-law of the applicant, and was on friendly
terms with him. He could not say if his father
was insolvent and in needy circumstances when he
came to live on the farm. He (witness) had been
insolvent, and had not been rehabilitated.
Mr. D. S. Malan, examined by the Court, cor-
roborated the evidenoe of his brother (the last
witness), and stated that he was present when
his father was appointed overseer.
Mr. P. L. Russouw deposed that his father had
been one of the original owners of the land in
question. He did not remember when old Uys
died, but he remembered D. Malan being appointed
overseer. He had frequently seen Malan on the
farm in that capacity.
Mr. Schreiner, for the applicant, contended that
there was no committee in existence in the
year 1860 whioh could have appointed D.
Malan overseer, as all the members ef
the eld committee had died before that
year. The applicant had had undisturbed posses-
sion for over thirty years, he had acquired owner-
ship by prescription, and was entitled to have the
land registered in his name. The fact that the
MaUns had lived on the land for some years ooulcv
not affect applicant's rights.
190
Mr. Searle was not called upon to reply.
The Chief Justice, in giving judgment, said that
when the application was first made he had doubts
as to whether a rule should be granted. As, how-
ever, several persons appeared to be interested in
the land in question, he (the Chief Justice) thought
that it would be well to have the matter fully dis-
cussed. Several interested parties, including
descendants of the original owners, had now
appeared to oppose the rule being made absolute.
The two Malans had been just as long in posses-
sion of the land as the applicant, and had quite as
much right to the ownership as he had. In his
(the Chief Justice's) opinion, the applicant had
had no suoh occupation as would oonfer upon him
a prescriptive title. Under these oircumsttnoes
the rule would be discharged with costs.
In re MABY ARTHUR.
Mr. Molteno moved for an order declaring
Miss Arthur to be of sound mind, and releasing
her surators from the oharge of her person and
estate.
The affidavits of Dr. Dodds, Dr Murray, and
Mr. Arderne were read, from which it appeared
that Miss Arthur was now perfectly sane, and
capable of looking after her person and property.
The Chief Justice said that from the medical
evidence which was before the Court on the last
occasion they had no other course open to them
but to declare Miss Arthur of unssund mind. He
was pleased to find that the same doctors were now
of opinion that Miss Arthur had quite recovered ;
the Court would accordingly declare her of sound
mind, and release her curators.
PETEBS V. PETEBS.
On the application ef Mr. Jones, this matter was
ordered to stand over until the 18th instant.
In re THE DAM ARAL AND MINING AND
EXPLORATION COMPANY, IN LIQUIDATION.
Mr. Shiel presented the first report of the official
liquidators of the above-mentioned company, and
moved for confirmation of the same.
The Court confirmed the report.
PETITION OF STEPHAN BROS.
On the motion pf Mr. Graham, the Court made
absolute the rule niti for the registration in the
names of petitioners of the title to certain
•hare in a piece ef land known as Buurman's
?wist, situated in the division of Malmesbury.
IN THE ESTATE OF THE LATE MARTHINUS P.
LOUBSER.
Mr. Graham applied for authority to the tutors
dative of the minor Hendrick C. Loubser to draw
from the inheritance out of the said estate to his
credit in the hands of the Master an annual allow-
ance towards his maintenance and education. The
inheritance in question amounts to £287, and an
allowance of £50:per annum was asked for.
The Court granted the order.
PIET V. PIET.
On the motion of Mr. Molteno, the Court ordered
the removal of the cause for trial at the next
Circuit Court for the district of Oudtshoorn.
PETITION OF PETBU8 F. JOUBEBT AND OTHERS.
On the application of Mr. Searle, the Court made
absolute the rule nut for the amendment of the
order of this Court dated 27th November, 1890.
PHILLIPS V. PHILLIPS.
On the motion of Mr. Giddy, the Court made
absolute the rule nisi for the dissolution of the
marriage subsisting between the parties by
reason of the defendant's failure to return to
her husband as ordered.
BURGER'S EXECUTRIX V. BURGER'S EXECUTOR.
Sir T. Upington, Q.C n appeared for the plaintiff,
Mr. Schreiner for the defendant, and Mr. Juta as
cwator ad litem for the minors.
In this matter judgment for £78 and oosts wss
entered in terms of consent. The Court also
granted a rule nut, calling upon all persons in-
terested to show cause on the last day of term
why the lost bond should net be cancelled ; one
publication to be made in the Government GfucUe.
SUPREME COURT.
MONDAY, AUGUST 3.
[Before the Chief Justice (Sir J. H. DE ViLLlBBfl),
Mr. Justice Smith and Mr. Justice
BUCHAKAN.]
IN THE ESTATE OF THE LATE JAMBS OEAlK,
Mr. Shiel applied for the appointment of Mr.
Robert Bell as curator bonis in the above-
mentioned estate. The lata Mr. Craik oarrioden
191
the business of a grocer in Long-street, Gape
Town, Mr. R. Bell being his manager. On the
14th February, 1890, the deceased executed a
general power of attorney in favour of Mr. Bell,
and subsequently went to England, taking with
him his wife and family. In the same month Mr.
Craik and his wife executed a mutual will, ap-
pointing the survivor of them sole heir, and in case
of the death of both without having made a fresh
will, appointed George Craik (now a minor) sole
heir, and Mr. R. Bell sole executor. Mr. Craik
died in Edinburgh on the 29th July last, and
consequently the power of attorney above referred
to becomes void. Mr. Bell now asked to be
appointed curator bonis, with powers to manage the
business generally in the interests of the widow.
The Court authorised the Master to appoint Mr.
Robert Bell curator bonis, with permission to carry
on the business on his finding security.
STEWART V. KINGON.
8ir T. TJpington, Q.C., appeared for the plaintiff
the defendant in default.
This was an action to recover the sum of £68,
balance of account for cash and shares lent to the
defendant. The defendant set up a claim in re-
convention for £210.
The Court, after hearing the evidence of the
plaintiff and of Mr. Graham Spiers, gave judgment
for the claim in convention, and absolution from
the instance with regard to the claim in reconven-
tion.
[Plaintiff's Attorney, Mr. J. Hamilton- Walker.]
REGINA V. ADELBUBG.
Criminal law — " Attempting to commit theft
by false pretences " — Indictment — Act 3 of
1861, section 7 — Point reserved— Con-
viction upheld.
This case came on for argument on a point re-
served at the last Criminal Sessions by his lord-
ship the Chief Justice, st the request of Mr. Juta.
Mr. Juta now appeared for Adelburg, and Mr.
Giddy for the Crown.
The facts of the case are as follows : On the 27th
May last Adelburg visited Mr. Charles Hay ward,
who keeps the South African Hope Hotel in
Pepper-street, and said to him that a friend o f his,
named Barnett, who had come from Kimberley
had some nice stones for pale, and tbat there was
a chance of making £100 if Mr. Hay ward liked to
purchase the stones. Mr. Hayward replied that he
would like some little time to consider it, and re-
quested Adelburg to call again in the morning*
Mr. Hayward, who had his suspicions aroused, then
communicated with the police authorities, with
the result that two detectives, Edward Thomas
Newton and Florence McCarthy, came to the
hotel early next morning, and were stationed in
th* dining-room, which overlooked the back yard,
and the shutters of which were so arranged that
the detectives could see anything that
transpired in the yard. Between half-past eight
and nine o'olook Adelburg arrived, bringing
with him Barnett, and Mr. Hayward, as arranged
with the detectives, took the two men into the
back yard. When there, Barnett drew a hand-
kerchief from his pooket, untied the corner, and
produced two stones wrapped up in paper. He
showed the stones to Mr. Hayward, told him they
weighed fifty carats, and that they were worth 58s.
a carat, but that Hayward might have them for
30s. a carat. There, Barnett continued, was £100
staring him in the face. Detective Newton, peep-
ing through the shutter, saw the stones produced,
but could not hear what was said Mr. Hayward
made a pretence of entering the house to fetch
money, but in reality to warn the detectives, who
thereupon came out and arrested both A delburg
and Barnett. The police took oharge of the
stones, and afterwards submitted them to Mr.
Henry Francis Seale, jeweller, of Church-street,
who pronounced them to be glass. On being
searched at the station a third false stone was
found on Adelburg.
At the trial Barnett was aoquittel, but Adel-
burg was found guilty, and sentenced to twelve
months' imprisonment with hard labour. Mr.
Hayward, in his evidence, admitted that he had
no intention to buy the stones, and that his object
in telling Adelburg to return on the following
morning was that the police might *' trap " the
prisoners.
The point reserved for argument was whether
A delburg had been rightly convicted of attempt-
ing to commit theft by false pretences notwith-
standing the fact tbat Hayward did not intend to
buy the stones, and consequently could have
sustained no prejudice.
Mr. Juta, on behalf of the prisoner, took the
preliminary objection to the indictment that it
was bad, inasmuch as it charged the prisoner with
attempting to commit theft by false pretenoes,
without alleging what specific thing had been
attempted to be stolen.
The Chief Justice : This objection was not taken
at the trial, and is not the point reserved.
Several precedents of similar indictments were
produced, and the indictment under consideration
was found to be in " comm m form."
Mr. Justice Buchuanan referred to Act 8 of
1861, section 7.
Mr. Juta, continuing his argument, contended
that the prisoner had not attempted to commit
theft by false pretences as alleged in the indict-
ment, but that his offence was fraudulently
192
attempting to induce Hay ward to enter into a
contract. Counsel proceeded to draw a distinction
between the crimes of falsum and furtum referring in
his argument to Carpsovius, pars. II., Q. 93, obs. I ,
sec. 12, and urged that under the circumstances
as disclosed in the evidence the conviction could not
not upheld.
The Chief Justice, in giving judgment, said that
an objection had been taken to the indictment
which ha3 not been raised at the trial. This ob-
jection was, however, effectually disposed of by sec.
7, Act 3 of 1861, which had been referred toby Mr.
Justice Buchanan. With regard to the point
reserved, he (the Chief Justice) was of opinion
that it must be decided against the prisoner. All
the elements whioh could constitute the crime
charged were present, there was the intention and
the overt act, and it was not impossible that Hay-
ward might not at the last moment have changed
his mind and bought the stones, as he (the Chief
Justice) had pointed out at the trial. Under these
circumstances, he was of opinion that the prisoner
had been rightly convicted, and that the conviction
must be upheld.
Their lordships concurred.
BULTFONTEIN MINING BOARD V. ARMSTRONG
AND THE L. AND 8. A. EXPLORATION COMPANY.
Trespass— Action for damages — Interdict —
Mining Board— Act 19 of 1883, section 34
— Exclusive control and management of
Mining Area — Statutory reserve — En-
croachment — Mining operations — Con-
struction—Ordinance No. 11 of 1880,
Griqualand West — Bye-laws — Appeal from
judgment of High Court.
Mr. Schreiner and Mr. T. L. Graham appeared
for the appellant (the plaintiff in the Court
below) ; Mr. Juta for the respondent Armstrong ;
and Mr. Searle for the Lendon and South African
Exploration Company.
This was an appeal from a decision of the High
Court of Griqualand West in an action instituted
by Mr. William Charles Chitty Erskine (in his
capacity as chairman for the time being of the
Bultfontein Mining Board) against Mr. Alexander
Armstrong and the London and South African
Exploration Company for trespass. The facts of
the case appear sufficiently from the pleadings.
The plaintiff in his declaration alleged thnt he
was the chairman of the Mining Board for the
Bultfontein Mine, duly constituted under Act 19
of 1883, and as such was the proper person to sue in
this action.
That the first-named defendant was a digger
residing in Bultfontein.
That the said Mining Board were in lawful
occupation of, and were vested by Act 19 of
1883 with the exclusive control and management
of a certain area connected with the said Bult-
fontein Mine, for the benefit of the claimholders
of the said mine, which area, called the Mining
Area, had been duly surveyed, defined, and pro-
claimed in terms of section 84 of Act 19 of 1883.
That in or about May, 1890, the first-named
defendant, who was not a claimholder in the said
mine, and who was not entitled to enter the said
mining area without the consent of the said Mining
Board, trespassed upon the said area and wrong-
fully and unlawfully, and without the consent of
the said Mining Board, erected certain washing
machinery thereon, and washed therewith, and
continued te wash certain debris, the property of
the said Mining Board, thereby causing loss and
damage to the said Board.
That the defendant (Armstrong), though re-
quested so to do, refused to lemove the said
machinery and to discontinue washing del>ris
within the said area.
For an alternative count the plaintiff alleged
that, by virtue of the powers given to Mining
Boards by Griqualand West Ordinance No. 11 of
1880 to pass bye-laws, the said Mining Board had
passed a bye-law, under the said Ordinance,
prohibiting any person from entering the said
mining area without the authority or permission of
the said Mining Board, whioh said bye-law had been
approved of by the Governor and Executive Coun-
cil and duly promulgated, and had legal force and
effect.
That at divers times between May, 1890, and the
present time the defendant (Armstrong) had
wrongfully and unlawfully entered and continued
to enter the said mining area and wash debris
therein without the permission of the said
Mining Board, in contravention of the said bye-
law.
For a further alternative count, the plaintiff
alleged that in the year It 81 an agreement was
entered into between the London and South
African Exploration Cempany, the owners of the
farm Bultfontein, on which the said Bultfontein
Mine is situnte, and the claimholders of the said
mine, whereby a certain area round the said mine
(within which area the aforesaid machinery was
erected by the defendant) was set apart and dedi-
cated by the said London and South African
Exploration Company to the said claimholders,
free from all control of the said Exploration Com-
pany, for the purpose of hauling sites, erecting
machinery, and generally for the efficient and
proper working of the claims in the said mine by
the said claimholders.
That it was at the same time further agreed
193
between the said London and South African
Exploration Company and the said claimholders
that the said area 83 dedicated and set apart as
aforesaid should be placed under the exclusive
control and management (for the benefit of the
said claimholders) of a certain Board of Com-
mittee of three persons, called the Depositing
8ites Committee.
That thereafter it was agreed between the said
olaimholders and the London and South African
Exploration Company that the plaintiff Board
should bo substituted fur the said Depositing Sites
Committee, and that the area so dedioated and set
apart as aforesaid should be under the exclusive
control and management of the said Board, and
thereupon the said area was placed under the
exclusive control and management of the said
Mining Board.
That in or about May, 1890, the first-named
defendant wrongfully and unlawfully, and without
the consent of the said Mining Board, trespassed
upon the area so set apart and dedicated as afore-
said, and erected certain washing machinery, and
washed and continued to wash debris, the property
of the said Mining Board, to the damage of the
said Mining Board.
That the defendant, though often requested,
refused to move the said machinery and to discon-
tinue washing de'bris within the said area.
The plaintiff claimed :
1. £1,000 damages as aforesaid.
2. A perpetual interdict restraining defendant
from trespassing as aforesaid.
3. General relief and costs of suit.
In bis pleas, the defendant Armstrong, amongst
other defences, justified the acts which were
alleged in the declaration to constitute the trespass
by virtue of certain agreements entered into by
hint with the London and South African Explora-
tion Company, whereby, in return for valuable
consideration, the slid company authorised and
permitted him to enter up< n their said farm
Bultfontein, to erect certain washing machinery
thereon, and to wash and search for diamonds in
the soil, situate upon the said farm and forming
part of it.
[Subsequently the London and South African
Exploration Company were allowed to intervene in
the case as co-defendants.]
Both the defendants pleaded, inter alia, that
Bultfontein had never been legally and validly
declared and proclaimed to be a mine, and they
denied that the Mining Board ever had been con-
stituted unde<* the provisions of Act 19 of 1883.
Further, even assuming Bultfontein to be a
duly-proclaimed mine, the provisions of section* 8-1
and 39 of Act 19 of 1883 did not apply to this
mine, inasmuch as it was situated upon land the
title to which was not subject to a reservation of
minerals or precious stones in favour of the
Crown.
They also pleaded that the Mining Board was
not vested by Act 19 of 1888 with the exclusive
control and management of the mining area, so as
to entitle the Board to restrain the owner of the
soil from entering upon that area and using it for
his own purposes
Upon these facts and pleadings issue was joined.
The Court below held, inter alia, that the plaintiff
had failed to prove that the Mining Board were
vested by Act 19 of 1883 with the exclusive control
and management of the mining area, or that they
had the exclusive possession of the said area, and
that it followed as a matter of course that the
plaintiff could not claim that the de'bris which
had been deposited in the mining area had become
the property of the Board by virtue of their occu-
pation of it as abandond property. From this
decision the appellant (plaintiff in the Court
below) now appealed.
Mr. Schreiner, after stating the facts, said that
he purposed to divide his argument into three
parts:
1 . The statutory rights of control and manage-
ment conferred upon the Mining Board by Aot 19
of 1883, section 34.
2. The confirmation of those rights by the
promulgation of bye-laws.
3. The special agreement entered into between
the Mining Board and the Loudon and South
African Exploration Company and the construc-
tion and effect of that agreement
Mr. Schreiner then proceeded to discuss each of
these points at length.
Mr. Juta was heard in reply.
Cur ad vult.
P os tea (4th Aug.)
The Chief Justice gave judgment as follows : I
entirely conour with the judgment of Mr. Justice
Solomon, and with the reasons for his judgment.
To prevent any misconception, however, I desire
to add that, in affirming the judgment, this Court
must not be considered as deciding that the
Mining Board has no powers of control or manage-
ment over the mining area of Bultfontein. What
we do deoide is that the powers which the Board
does possess do not entitle the Board to relief in
this action, without proof that the election of
machinery and the washing of de'bris by Arm-
strong within the mining area can or do interfere
with the rights of the claimholders. I am very
far from holding that if there had been an en-
croachment by Armstrong, even with the consent
of the London and South African Exploration
Company, upon the statutory reserve of 200 yards
around the margin of the mine, the Board would
have had no locus standi to apply for an interdict te
194
restrain such encroachment. It is admitted that
the alleged trespass is beyond the 200 yards limit.
In the same way there is nothing in the judgment
which would justify the company in contracting
the area required by the claimholders for mining
purposes outside the mine, or in devoting suoh area
to purposes not connected with mining purposes.
The erection of machinery fur washing purposes,
and the washing of de'bris which came from the
mine appear to me to be mining operations outside
the reserve, which ought not to be restrained with-
out proof that the rights and privileges of the
claimholders are in any way affected thereby. It
is true that the de'bris was not taken out of the
mine by Armstrong, but there is nothing in the
evidence to show that his possession of it was
illegal. The declaration alleges that the de'bris
belongs to the Mining Board, but there is not a
partiole of evidence to support this allegation, and
there is nothing in the Act of 1888, which
expressly or impliedly gives the Board
the right to de'bris which has been abandoned
by the claimholder who raised it. In
regard to bye-laws, I agree with Mr. Justice
Solomon that had any bye-law been passed to
meet a case like the present the plaintiff would
have been in a better legal position than he is at
present. But in the absence of such bye-law I
would not go so far as to hold that the Board has
no locus standi to protect the rights of the claim-
holders in general where those rights have been
infringed. The result of the absence of a bye-law
is to throw upon the Board the burthen of proving
that those rights have been actually infringed.
The only other observation which I wish to make
is that the main point decided by this Court in
the case of the u London and South African
Exploration Company v. Bultfontein Mining Com-
pany " (8 Juta, 56) was that, inasmuch as the
portion of the mining area which the then
defendants had trespassed upon had been reserved
by the oompany as part of the mine itself, it could
not be claimed by the adjoining claimholder
as an expansion of the mine in terms of
the 69th section of the Act of 1888. An
additional reason for the judgment was that there
had been no allotment of that portion by
the Mining Board. I fail to see how this addi-
tional reason assists the Board in the present case.
There is no allegation, much less proof, that the
Board had duly allotted, the portion occupied by
Armstrong to anyone else before he occnpied it.
If it had been so allotted, the allottee, if not the
Board itself, would, I presume, have had a remedy
against Armstrong. But the land appears to have
been unoccupied, and in the ab*et ce of proof that
the occupation by Armstrong does at present or
will in future hamper the claimholders in their
mining operations, and in the absence of any bye-
law framed under the Act of 1888, authorising the
Board to interfere in a case like the present, we
are of opinion that the appeal must be dismissed
with eosts.
Their lordships concurred.
[Attorneys for Appellants, Messrs. van Zyl ft
Bussinne and Messrs. Scanlenft Syfret; Attorneys
for Respondents, Messrs. Fairbridge ft Arderne.]
SUPREME COURT.
TUESDAY, AUGUST 4.
( Before the Chief Justice (Sir J. H. DR
VlLLIERS), Mr Justice SMITH, and Mr.
Justice Buchanan.]
CILLIERS V. PIENAAE AND WIFE.
Defamation of character — Action for dam-
ages — Exception to declaration as dis-
closing no cause of action.
Mr. Sohreiner appeared for the plaintiff, and
Mr. Searle for the defendants.
This case came on for argument on an exception
taken by the defendants to the plaintiff's declara-
tion.
The facts of the case are as follows : The plain-
tiff is a farmer, and resides with his wife at
Bonteboksfontein, in the district of Hanover, and
the defendants reside at Niekerksfontein, in the
district of Richmond. The declaration alleged
that in the month of August, 1890, at
Richmond, and on divers occasions, in the presence
and hearing of one Jacobus Staphs nus Grove', sen.,
one Jacobus Stephanus Conradie (brother of
plaintiff's wife), and Christian Gert Conradie
(father of plaintiffs wife), the defendant
Baxend Pienaar wrongfully, unlawfully, and
maliciously spoke, published, uttered, and repeated
in Dutch, of and concerning the plaintiff and his
wife the following false and defamatory words or
words, having the following effect :
"She (that is the plaintiff's wife) is badly
treated by her husband (that is the plaintiff);
Charl (that is the plaintiff) is very often absent;
she does not know where he is or when he returns ;
she has to carry wood to the house with a child
on her back ; she has to fetch fuel-dung from the
kraal to the house ; that when she complains of
having too little meal he gives her a small dish of
meal, and says that she must manage with it ; he
treat 8 her an a servant, but not as a man his wife ;
when her ohild was ill he allowed her to be
fetched from Hanover by a Hottentot, who nearly
lti
upset the cart ; he treats her badly;
he carries all the keys in his pocket, and
everything in the house is looked up ; if he
had any affection for his wife he could hire a maid-
servant for the work."
Farther, that in or about the month of August
or September, 1890, and at Richmond aforesaid, in
the presence and hearing of Magdalena Elisabeth
Conradie, mother of plaintiffs wife, the seoond-
named defendant wrongfully, unlawfully, and
maliciously spoke, uttered, published, and repeated
in Dutch of and concerning the plaintiff and his
wife the following false and defamatory words, or
werds having the following effect :
"She (that is the plaintiff's wife) is treated
quite like a servant. Charl (that is the plaintiff)
treats Nonnie badly, he had not even as muoh con-
cern for her when her ohild was sick as to take her
to a doctor, but he sent her with a Hottentot.
Charl is well off, but madam should go and see
how badly off madam's ohild is for clothing.
Cilliere is too stingy to hire a maid-servant for her,
yet she must work so hard that madam should ride
over and go and take her ohild away. Were she my
child I would not allow her to remain one day longer."
By reason of the false, defamatory and malioious
words aforesaid the plaintiff has sustained injury
to his fair fame and reputation, and has sustained
damages in the sum of £200 sterling."
The defendants excepted to the above declaration
on the grounds that the words spoken were not
defamatory, and that the declaration disclosed no
cause of action,
Mr. Searle, in support of the exception, con-
tended that the words referred to in the declara-
tion were not defamatory, but were ordinary ob-
servations made about people who appeared to live
a hard farming life. The werds were at most
ambiguous, and the Court under such circum-
stances would not infer malice. Counsel referred
to Voet (47, 10, 8, and 47, 10, 10), and submitted
that the plaintiff was a little too thin-skinned, and
had taken offence at words whioh oould not possibly
have injured him, and which were the mere gossip
of old women. The case was a trumpery one, and
the defendants ought not to be put to the expense
of defending it.
Mr. Hofareiner : The Court has not to oonsider
whether the case is a trumpery one or not. With
regard to the statement that the plaintiff is too
thin-skinned, my learned friend has displayed a
knowledge of the superficial covering of my client
whioh the circumstanoes do not justify. Serious
charges had been made against the plaintiff that
he had treated his wife badly, and had behaved
towards her as if she had been a servant.
The Chief Justiee : If the words used had been
in writing could they have been the subject of a
criminal prosecution?
MriSebreiner: No doubt the Attorney-General
would exercise a wise discretion, and if he did not
think they justified the issue of his fiat, he would
recommend the civil remedy. It was impossible to
hold that the words used were not malioious and
defamatory.
The Court overruled the exception, costs to be
costs in the cause.
PETITION OP MAT ALICE HATCH.
Funds in hands of plaintiffs attorneys —
Application by defendant (wife of plain-
tiff) for a portion of funds to enable her to
prepare defence granted.
Mr. Sohreiner appeared for the petitioner, and
Sir T. Upington, Q.C., fer the respondent.
This was an application for an order authorising
the payment to petitioner of a sum of money out
of the funds in the hands of her husband's
attorneys to enable her to proceed with her defence
in an action instituted by her said husband to have
their marriage declared null and void.
It appeared from the petition that the peti-
tioner is the wife of Mr. G. Hatch, to whom she
was married on the 1st February, 1886.
That on the 28th January, 1886, an ante-naptial
contract was executed between the parties, under
the terms of whioh certain furniture and other
effects were settled on the petitioner as a marriage
settlement.
That on the 10th March, 1891, the parties exe-
cuted a deed of separation wherein it was stipu-
lated, inter alia, that the above-mentioned furni-
ture should remain the property of the petitioner.
That on the 23rd March, 1891, the petitioner
signed an acknowledgment of debt for £77 for
value received in furniture (this being furniture
then belonging to the respondent, and being quite
distinct from that settled by him on the petitioner
under the marriage settlement and deed of
separation).
That on the 12th June, 1891, a summons was
served on the petitioner, at the instance of the
respondent, wherein he claimed :
(1) That the marriage should be set aside and
declared void ab initio ;
(2) custody of the ohild the issue of the
marriage ; and
(8) an order setting aside the marriage settle-
ment.
That on the 17th June, 1891, a rule nisi was
obtained, restraining the petitioner from selling
the furniture pending the result of the action.
The furniture in question was, however, sub-
sequently sold, and realised the sum of £181 2s. Id.
whioh amount is now in the hands of respondent's
attorneys.
196
At the time Mr. Hatch married the petitioner
(then a Mrs. T adman) she was supposed to be a
widow, she having as a fact received a letter from
Mr*. M. A. Loft, her sister-in-law, to the effect
that Mr. Tadman had died at Margate on the 1st
May, 1886.
Mr. Hatch has, however, recently received in-
formation to the effect that Mr. Tadman is still
alive, and on these grounds he is now bringing an
action to have the marriage between himself and
Mrs. Tadman (the petitioner) declared null and
void.
The petitioner alleges that she has a good
defence to the action, and asks for sufficient funds
to enable her to undertake the defence.
The Chief Justice said that it was a matter ef
the utmost importance to the petitioner that she
should prove the death of her former husband.
There had been no mala fides on her part in
entering on the second marriage, and she ought to
have an epportunity of proving, if she could, her
former husband's death. Under these circum-
stances the Geurt was of opinion that the sum of
£60 should be paid to petitioner's attorney, to be
administered by him as a trust fund to enable the
petitioner to make the inquiries necessary for her
defence. No order would be made as to costs.
HADJB MOCHAMAT JA88IEM AND OTHERS V.
THE MA8TEB AND G. W. STEYTLBR, (IN HIS
CAPACITY AS EXECUTOR DATIVE OF THE
ESTATE OF THE LATE ABDOL RAGM AN.)
Mr. Searle appeared for the applicants, Mr.
Giddy for the Master, and Mr. Sohreiner for Mr.
G. W. Steytler.
The matter was ordered to stand over for
further information
VAN ZYL AND OTHERS V. DB BEER'S
EXECUTRIX.
Practice— Rule of Court 330 (a)— Pleadings
—Bar.
Mr. Sohreiner appeared for the applicant
(defendant), and Mr. Searle for the respondents
(plaintiffs).
This was an application calling upon the
respondents to shew cause why judgment should
not be entered against them, or why they should
not be barred from proceeding with
an action partly heard by the Court
on the 17th March last (1 C.T.L.R.,
78) (when the Court refused to grant
the order or interdict applied for, restraining
applicant from obstructing the flow of water from
the farmMatroosfontein to Wittedrift, but allowed
the notice of motion bearing date the 16th
February, 1891, to stand as the summons), by
reason that the said respondents had failed to pro-
ceed with their action by filing a declaration within
the next term after that in which the action was
commenced.
Mr. Schreiner, in support of the application re-
ferred to Rule of Court 330 (a), and contended
that, inasmuch as the respondents had not com-
plied with this rule, they were clearly barred.
Mr. Searle, for the respondents, submitted that
the rule did not apply. Regard should be had as
to when the matter was actually before the Court
namely in March, in which case the respondents
would have had till the end of the August term
within which to file their declaration.
Counsel referred to the affidavit of Mr. B. H.
van Noorden, from which it appeared that after
the interdict had been refused the applicant sold
the farm Matroosfontein to Mr. P. A. van Zyl,
with whom an action is now pending, and that if
Mr. Van Zyl succeeded in hi* action the case
before the Court in March last would not be
continued, and that it was in consequence of this
fact that the action against applicant was not
proceeded with.
Mr. Sohreiner, in reply, said that the respondents
should have acted reasonably. Applicants
attorney had written asking them if they intended
to abandon the action, but no reply had been
received.
The application was refused with costs.
SUPRE ME COURT.
WEDNESDAY, AUGUST 6.
[Before the Chief Justice (Sir J. H. DB
VlLLIBRS), Mr. Justice SMITH, and Mr.
Justice Buchanan.
CLAREMONT AND OTHER MUNICIPALITIES Y.
OHLSSON'S GAPE BREWERIES.
Costs — Nuisance — Provisional Interdict.
Where on an application for an interdict
restraining the continuance of a nuisance
the applicants had shown sufficient cause
for the granting of a provisional interdict
but the matter was ordered to stand over,
and a further application was subsequently
made, but withdrawn on proof that the
nuisance had been abated, costs were given
the applicants on both motions.
Mr. Searle appeared for the applicants ; Sir T.
Upington, Q.C., and Mr. Juta for the respondents.
197
This case was before the Court on the 18th
April last, when an interdict was applied for
restraining the respondent company from dis-
charging refuse matter into the Liesheek River.
The matter was allowed to stand over till the
August term, on the company undertaking to
remove the eanse of complaint.
Mr Searle now applied for further extension of
time, on the grounds set forth in an affidavit of Mr.
Gibbs, who deposed that since the matter had
been betore the Court in April last he had in-
spected the underground drain (the chief cause of
complaint) on thirty-five different occasions, and
he found that the nuisance had been considerably
abated, partly owing to the efforts of the company,
and partly owing to the winter rains, but it was
impossible for him at present to say whether the
nuisance would be renewed in the dry season.
Under these circumstances, the Municipalities did
not at present feel justified in proceeding with the
action.
In answer to the Court, Mr. Searle said that he
was willing to consent to the order being dis-
charged if the respondents paid costs, and on
condition that application could be made again,
say at the end ef December, when it could be
fully tested whether the nuisance was likely to
continue or not.
Mr. Juta : The position taken up by my learned
friend is an extraordinary one. The matter has
been standing over since April last, when the
question as to whether the applicants were entitled
to an interdict or not was not discussed. Ever
since the Municipalities have been endeavouring
to get sufficient evidence to establish their case,
and after having failed to do this, and abandoned
their action, they ask us to pay costs. Surely the
Court would not give costs in such a oase ; the
most it would do would be to order each party to
pay their own costs.
Mr. Justice Smith intimated that he did not
intend to take part in the decision, as he was not
present when the matter was before the Court on
the last occasion.
The Chief Justice, in giving judgment, said that
he thought it would be better for all parties if no
further application were made to the Court unless
there was proof that the nuisance continued. The
only grounds upon which the Court would order
the respondents to pay costs were that in the
original application the Municipalities had proved
that they weie entitled to a provisional interdict.
There had been a great conflict of evidence, but the
medical testimony clearly showed that in April
last a serious nuisance did exist. To prevent the
stoppage of an important industry a provisional
interdict was not granted, the respondents under-
taking to do all they could to abate the nuisance.
The Court was now, however, driven to give a
decision as to what would have been the original
2d
order, and he (the Chief Justice) was bound to say
that they would have granted a provisional inter-
dict with costs. Under these oiroumstances, he
was of opinion that the applicants were entitled to
the costs of the original motion.
Mr. Searle : The order, I presume, includes the
oosts of to-day ?
The Cnief Justice : Tes.
Mr. Justice Buchanan concurred ; and remarked
that on the original motion the applicants
were dearly entitled to a provisional interdict and
oosts.
WABD V. GERALD AKD CO.
Mr. Shiel, on behalf of the applicant, applied for
leave to sue in forma pauperis in an action about
to be instituted by him against Gerald & Co., of
Cape Town, for damages for breaoh of oontraot.
Referred to counsel for his certificate.
EATON V. BATON.
On the application of Mr. Tredgold, leave was
given to extend the return day of the rule nisi
until the last day of term.
LOTTER V. NDHLAKOALAVA.
Mr. Juta appeared for the appellant (defendant
in the Court below), and Mr. Graham for the
respondent.
This was an appeal from a decision of the
Resident Magistrate of Cathcart, given on the 21st
May last, under the following circumstances : The
plaintiff (present respondent), a native living in
Keiskama Hoek, sued the defendant (present
appellant) for the delivery of an ex alleged to have
been forcibly taken possession of by defendant's
son, who claimed the ox as belonging to his father.
At the trial the defendant alleged that the ox was
his, that he had lost the same six years before, and
that he recognised it by its colour, and by certain
marks on its body. The evidence as to the history
of the ox was of a very conflicting character, the
plaintiff stating that he had received the ox when
it was a calf as part of a dowry for his daughter,
whereas the defendant alleged that he had bred
the ox, and that it remained in his possession until
it was four years old when he lost it. The Magis-
trate gave judgment for the plaintiff, and from this
decision the defendant now appealed.
Mr. Juta was heard in support of the appeal.
Mr. Graham was not called upon.
The Chief Justice, in giving judgment, said that
it was impossible to interfere with the decision of
the Resident Magistrate. The appellant had taken
foroible possession of the ox, and the onus was on
him to prove that the ox was his. He had failed
to satisfy the Magistrate on this point, and under
198
these circumstances the decision of the Magistrate
must be upheld and the appeal dismissed with
costs.
[Attorneys for the appellant, Messrs. van Zyl &
Buissinne ; for the Respondent, Messrs. Fair-
bridge <fc A rd erne. J
BAM'S EXECUTORS V. HAUPT.
Magistrate's jurisdiction — Exception — Act 20
of 1856, section 8.
Mr. Searle appeared for the appellants, and Mr.
Molteno for the respondeat.
This was an appeal from a decision of the Resi-
dent Magistrate of Stellenbosoh, upholding an
exception to the summons taken by defendant's
attorney on the grounds that the Court had no
jurisdiction. The plaintiffs (present appellants)
in their summons claimed the delivery of ten
leaguers of Cape brandy, valued at £130, or £20
damages, alleged to have been sustained by non-
delivery of the brandy. The Magistrate gave the
following reasons for upholding the excep-
tion : " The plaintiffs demand from the defendant
the restoration of ten leaguers of brandy, valued
at £180, which, on the face of it, is beyond the
jurisdiction of the Court. Every opportunity
was afforded the plaintiffs throughout to amend the
summons by erasing the claim for delivery and
simply to sue for damage?. Plaintiffs having failed
to do so, the Court had no other alternative but to
dismiss the case on this exception." From this
decision the plaintiffs now appealed.
Mr. Searle, in supporting the appeal, contended
that the Magistrate had erred in upholding the
exception, and that where in a summons, as in the
present case, there were two prayers, one of which
was beyond the jurisdiction of the Magistrate and
the other within his jurisdiction, it was quite
competent for him, within section 8, Act 20
of 1856, to give judgment on the latter prayer. If
the amount claimed in the first prayer was beyond
the jurisdiction of the Magistrate, he should have
himself amended the summons ; there was nothing
in section 50 to prevent his doing bo. Counsel
referred to " Lindenberg v. Bosman" (Buch. 1870,
p. 51), and " Taylor v. Haupt " (6 Juta, 22), and
submitted that the Magistrate should have over-
ruled the exception.
The Chief Justice, in giving judgment, said that
there was no question as to the correctness of the
Magistrate in upholding the exception, as the claim
was clearly beyond his jurisdiction. Every facility
had been given the plaintiffs to amend the sum-
mons by striking out the first part of the claim,
but they had failed to do so.
The appeal must be dismissed with costs.
[Attorney for the Appellants, J. C. de Korte ;
for the Respondent, G. Montgomery Walker.]
SUPREME COURT-
THURSDAY, AUGUST 6.
[Before the Chief Justice (Sir J. H.
Villiers), Mr. Justice Smith, and
Justice Buchanan.]
db
PROVISIONAL ROLL.
LOAN AND MORTGAGE AGENCY V. BRUHNS.
Mr. Tregold moved for provisional sentence on
a mortgage bond for £1,100, with interest at 8 per
cent, from 1st January, 1890.
Provisional sentenced granted and property
declared executable.
WALKER V. DICKSON.
On the application of Mr. Jones, provisional
sentence was granted for £30 in respect of pro-
fessional services rendered.
SHAH OF PERSIA SYNDICATE, IN LIQUIDATION
V. FROUD.
Mr. Shiel moved for provisional sentence for
£15, less £5 paid on account since issue of sum-
mons, in respect of calls due on shares in the
above-mentioned syndicate.
Provisional sentence granted with costs.
SHAH OF PERSIA SYNDICATE, IN LIQUIDATION
V. SMART.
On the application of Mr. Shiel, provisional
sentence was granted for £ 1 0, less £6 paid since
issue of summons.
REHABILITATIONS.
On motioni trom the bar, the rehabilitation of
the following insolvents was granted : William
Adolph Joubert, D.son, James Hilling Miller, and
Jan Rynhard Brister, J. son.
GENERAL MOTIONS.
IN THE ESTATE OF THE LATE THOMAS HALL.
On the application of Mr. Maskew, the Court
made absolute the rule nisi for the cancellation in the
Debt Registry of certain mortgage bond of £1,000
passed by the said Thomas Hall, since deceased,
in favour of the insolvent estate of Frederick A.
Boon, and ceded to Cfras. S. Pjllans,
i9d
PETITION OF MARIA J. WIDD0W80N.
Mr. Graham, on behalf of the petitioner, moved
for leave to sue in forma pauperis in an action for
debt against her husband.
Referred to counsel for his certificate.
In re J. N. KNOOP.
Mr. Jnta applied for the appointment of a
curator to take oharge of the person of the alleged
lunatic.
It appeared from affidavit that in the year 1881
the Court made an inquiry into the state of
Snoop's mind, when the Court declared him
incapable of managing his affairs, but declined to
declare him of unsound mind.
The Court now ordered a fresh inquiry to be
made, the evidence to be taken on affidavit, but
one witness who had seen the alleged lunatic to be
present in court at the hearing of the case.
The Resident Magistrate of the Paarl was
appointed curator ad litem, and instructed to fur-
nish his report to the Court.
BOTHA'S EXECUTORS V DBAS BROS.
Mr. Searle appeared for the applicants ; Mr
Molteno for the respondents.
The award of the arbitrators as to the sub-
division of certain farm known as Vinknest, in the
division of Oudtahoorn, was by consent made a
rule of Court.
IK THE ESTATE OF THE LATE J. VAN
HEERDEN.
Mr. Bchreiner moved for authority to the execu-
tors to sell certain erf and building belonging to
the estate in the village of Cradock, for the pur-
pose of discharging claims, and further authority,
in case the proceeds of such sale should not be
sufficient, to mortgage the. farm property to raise
the balance.
The matter was referred to the Master to report
generally as to the best course to be purused to meet
the views of the executors.
HATCH V. HATCH.
Mr. Giddy applied for the issue of a commission
to take the evidence of plaintiffs witnesses at
Aliwal North before the Resident Magistrate.
Mr. Schreiner consented, and the application was
granted.
In re THE ALBERT DISTRICT GOLD-MINING
COMPANY, IN LIQUIDATION.
Mr. Searle presented the second report of the
official liquidator of the above-mentioned company.
The Court made the usual order as to the report
lying for inspection for fourteen days at the
Master's Office, and at the office of the liquidator,
and for publication in the Gazette.
REGINA V. PRINCE.
Appeal from sentence of Resident Magi*
strate — Exception — Act 21 of 1876, section
4— Non-compliance with terms of section —
Appeal dismissed.
Mr. Juta appeared for the appellant, and Mr.
Giddy for the Crown.
This was an appeal from the sentence of the
Resident Magistrate of Robertson, passed upon the
appellant on a charge of using threatening and
abusive language likely to lead to a breach of the
peace.
Mr. Giddy took exception to the locus standi of
the appellant, on the ground that section 4 of Act
21 of 187G had not been complied with.
It appeared from the record that the appellant
had been convicted on the 2Cth April last, and that
the written notice of intention to appeal had not
been served on the Magistrate's clerk within four
days after c onviction, nor had the appeal been
brought within forty-one days from the giving of
notice as required by Act 21 of 1876, section 4.
The Court upheld the exception and dismissed
the appeal, with leave to counsel to mention the
matter again if satisfactory explanations could be
given for non-compliance with the terms of the
section.
[Appellant's Attorney, C. C. Silberbaurer ;
Attorneys for the Crown, Messrs. Reid <fc Nep-
hew ]
THE CAPE OF GOOD HOPE BANK, IN
LIQUIDATION V. LAWRENCE.
On the application of Mr. Juta, leave was
given to attach the agreement and one-third
interest of the respondent in respect of the contract
entered into between him and Messrs. Ward and
Wessels in connection with the farms Oliphants-
fontein and Benaauwdfontein ad fundandam
jurisdictionem of this Court, in an action to be
instituted to have it declared that the said bank
is entitled to all the rights of the respondent
therein.
The Chief Justioe said that he hoped the
liquidators were not taking this step in conse-
quence of a remark which he had made in the
judgment in the case of Coronel and Lawrence v.
Ward and Wtssels. That remark was not intended
to induce the bank to bring an action.
Mr. Juta : The question has been submitted to
counsel, and the liquidators are acting on his
opinion.
200
> /i N
V l # '
1% » r
IMBOTH V. WABD.
Diamondiferous farm — Right to prospect
and develop — Agreement — Cession — Re-
cession — Rights and obligations of cedent.
Mr. Searle appeared for the applicant, and Mr.
Juta for the respondent.
This was an application for an order restraining
the respondent from impedfhg the applicant or his
servants in prospecting, opening up, and develop-
ing the Premier or Wesselton Diamond-mine. On
the 26th Jane last judgment was given in the
case of " Coronel and Lawrence v. Ward and
Wessels " (1 C.T.L.R., 167), and the Court on that
occasion held that the plaintiffs were entitled each
to the benefit of one-fourth of any rights acquired
by Ward, by virtue of any agreement made
by him with Wessels, with respect to the Wessel-
ton properties. Prior to the hearing of the
action Lawrence had ceded his interest
in the agreement with Ward to Imroth, the present
applicant. By virtue of this cession Imroth new
claimed the right to go on the Wesselton Mine, and
help to prospect and develop it. This right was,
however, denied him by the respondent Ward, who
claimed to have the exclusive privilege, under the
agreement, of prospecting and developing the mine ;
hence the present application.
Mr. Searle : The applicant is entitled to all
Lawrence's rights under the agreement with Ward,
and those rights include the prospecting and
developing of the mine. The applicant undertakes
to account to Ward for all diamonds which may be
found, but insists upon his rights under the cession.
The Chief Justice : Supposing Lawrenoe had
ceded his rights to several persons, could they all
have come on the farm ?
Mr. Searle : Clause 4 of the agreement would
have prevented him from doing that.
The Chief Justice : Does Ward object to the
assignees coming on the farm to see how the work
is progressing ?
Mr. Searle : Ward does not say so, but he Bays
that he himself intends to work and develop the
mine in his own way.
After further argument,
The Chief Justice delivered the following judg-
ment : Under the agreement with Wessels, Ward
undertook certain responsibilities, and acquired
certain rights, but he was also bound by oertain
obligations — thus by the agreement he has a sole
and absolute right to prospect. (His lordship
read the second clause of the agreement.)
Ward ia making his agreement with Coronel and
Lawrence, took good care to secure to himself the
right of prospecting. If he had given the right of
prospecting to whomsoever he wished, he ran the
risk of breaking his agreement with Wessels.
Therefore, in oeding certain rights to Lawrenoe,
he reserved to himself certain rights, and one of
these was that he should develop and work the
mine. (His lordship again referred to the agree-
ment). Now, it is quite clear from the agreement
entered into between Lawrence and Ward, in my '
opinion at any rate, that Ward should be the
person to do the prospecting, and that Lawrence
should have no right of doing so. But I am bound
to say that if Lawrence can show that Ward
is not acting in a bona-Jide manner, and is not
doing his utmost for the benefit of all concerned,
he might have some right to come hereto compel J
Ward to do his duty or to enable Lawrence him- '
self to do it. This is a kind of partnership, and
each partner is bound to do his best for all con-
cerned, and if there were any allegation of want of
bonajides on the part of Ward, or of any Blackness /
on his part in doing his best for the interests of
the partnership, there might be some ground for
moving the Court. There is, however, no such
allegation, and under these oircumstances the appli-
cation must be dismissed with costs.
Mr. Justice Smith : I am of the same opinion.
With regard, however, to the last part of the
judgment. I have considerable doubt whether,
even if Ward did not do his duty, the Court could
interfere with the rights of Wessels.
Mr. Justice Buchanan concurred.
ROLLER V. ABAS.
Magistrate's jurisdiction— Act 20 of 1856,
section 8 — Title to land in dispute.
Mr. Searle appeared for the appellant, and Mr.
Sohreiner for the respondent. This was an appeal
from a decision of the Resident Magistrate ©i
Cape Tewn upholding an exosption taken to the
summons by defendant's agent, the exception
being that the Magistrate had no jurisdic-
tion inasmuch as " the title to property
was in dispute." The facts of the case
appear sufficiently from the Magistrate's reasons
which are as follows : " The defendant is sued for
a month's rent (£2 2s. 6d.) of a house and premises
stated in the summons to be the property
of the said plaintiff. The defendant says
that the title to the property is in dispute, and
produces a witness to prove that the property is
still registered in the name of one Andrews
(deceased), that Mr. Currey is the curator bonis in
the said estate and claims the property, and that
defendant has already paid him the rent in
question. The title to the property being there-
fore dearly in dispute I hold that I have no
jurisdiction."
Mr. Searle t The Magistrate erred in upholding
the exception ; he should have taken evidence as to
201
whether the dispute was bona fide or not. The
respondent has paid rent for the past two
years to the appellant, and in any case
he cannot dispute the title of his
landlord. To oust the jurisdiction of the Magis-
trate, the dispute as to title should have been
between the parties before the Court, andjW tertii
should not have been set up. The question was
one of rent, and net of ownership. The ease
should be remitted to the Magistrate to be decided
on its merits.
The Court held that a question of title was in
dispute, that the Magistrate had no jurisdiction,
and dismissed the appeal with costs.
[Appellant's Attorney, J. Hamilton Walker ;
Attorneys for the respondent, Messrs. Fair bridge
6 Arderne.J
SUPREME COURT.
SUPREME COURT.
MONDAY, AUGUST 10.
| Before the Chief Justice (Sir J. H. DB VILLIBB8)
and Mr. Justice BUCHANAN.]
BEGIN A V. PUTSHU AND KLEKISO.
On the application of Mr. Giddy, the venue was
changed from the Supreme Court to the Circuit
Court, King William's Town.
HEINAHANN V. H BIN A MANN.
Mr. Juta appeared for the plaintiff ; the defend-
ant in default.
This was an action for restitution of conjugal
rights, instituted by the plaintiff, Mrs. 8. Heina-
mann, against her husband, by reason of his
desertion.
The parties were married in 1866, and in 1886
the defendant left his wife and has since refused
to return to her.
The marriage baring been proved, and formal
evidence given by the plaintiff, the Court ordered
the defendant to return to his wife or receive her
an or before the 81st August instant, failing com-
pliance with which order to show cause, on the
12th September, why a decree of divorce should
not be granted.
[Plaintiff's Attorney, H. P. du Preez.J
WEDNESDAY, AUGUST 12.
[Before the Chief Justice (Sir J. H. DE
VILLIEB8, K.C.M.G.), Mr. Justice Smith,
and Mr. Justice BUCHANAN.]
Slander — Action for damages — Privileged
communication — Social duty.
GILLIEBS V. PIENAAB AND WIFE.
Mr. Schreiner and Mr. Jones appeared for the
plaintiff, and Mr. bearle and Mr. Molteno for the
defendants.
This was an action for slander, damages being
laid at £200.
The facts of the case and the particulars of the
alleged slander appeared on the 4th inst., {Ante
p. 194) when the arguments on the exception were
heard.
Mr. J. S. Grove", sen., examined by Mr. Schreiner,
stated that he was the grandfather of plaintiff's
wife. He knew the Pienaars. In August last the
first-named defendant came to his house in Rich-
mond, and spoke to him as to the condition of
things between Cilliers and his wife. He told him
(witness) that Cilliers treated his wife badly, and
as though she were a servant. Pienaar also said
that he had a message for Mr. Couradie, sen. (the
father of plaintiff's wife), and that Mr. Conradie
must fetch his daughter away. Witness was
seventy-seven years old, and did not remember all
the details of the conversation. He (witness) did
not go himself to Mr. Conradie, sen., in conse-
quence of the conversation with defendant, but he
told young Mr. Conradie about the matter.
Cross-examined by Mr. Baarle ; The conversation
referred to took place at his (witness's) house.
Mr. and Mrs. Pienaar were friendly with the Con-
rsdies. He knew that Pienaar had just returned
from Hanover, and he had heard that inquiries
had been made about the illness of Cilliers's
child. He only spoke of the conversation to young
Conradie.
Mr. Conradie, sen., examined, stated that he
lived in the division of Richmond. His son told
him of a conversation he had had with Mr. Grove*
about Cilliers and his wife, and in consequence of
what he heard he (witness) asked Pienaar to come
to his house. Pienaar came, and on his arrival
witness told him that he had heard that he
(Pienaar) had a message for him. The defendant
said " Yes." Barend Stevens had told him that
Cilliers treated his wife badly, that he made her
work like a servant, and that he frequently went
away without telling his wife where he was going,
202
and added that if Mrs. Cilliers were his child he
would not allow her to remain a day with Cilliers.
[At this stage of the case certain documents were
put in which had been drawn up by the Rev. Mr.
Moorrees with a view to settling the dispute be-
tween the parties.]
Cross-examined: He had known Mr. and Mrs.
Pienaar a long time. He did not at first think
that Pienaar was actuated by malice when he spoke
to him about his daughter, Mrs. Cilliers. Witness
had asked Pienaar to send him a telegram from
Hanover regarding the condition of Mrs. Cilliers's
child. He could not say if Pienaar knew Cilliers
and his wife. Stevens had practically confirmed
what Pienaar had told him.
Mr. J. S. Conradie, jun., gave the substance of
the conversation that passed between himself and
Mr. Grove'.
Mrs. M. M. E. Conradie (mother of plaintiff's
wife) stated that she had a house in Richmond.
One Sunday in August or September last she was
in Richmond, and attended church in the morn-
ing and afternoon. She walked home from church
in the afternoon with Mrs. Pienaar, who told her
that she had lately been to Hanover, and had
heard that her grandchild was ill, and that her
daughter, Mrs. Cilliers, had a very hard time of it
with her husband, and that she (witness) ought to
drive over, and not leave her child with Cilliers a
day. In consequence of what Mrs. Pienaar had
told her she was very much distressed.
Cross-examined : She did not see Mrs. Pienaar
very often, but they were good friends, and she
had no reason to believe that Mrs. Pienaar enter-
tained any malice towards her or her family.
Mr. Cilliers, the plaintiff, examined by Mr.
Schreiner, stated that he had heard the reports
which had been circulated as to the manner in
which he treated his wife ; they were absolutely
false, and previous to the occasions in question
nothing had ever been said as to his character as
a husband. He had been seriously damaged by
these reports. He had lost his good name. He
was ashamed to visit his friends, and he had been
deprived of his privileges in church.
The Chief Justice : How so ?— I have not been
able to receive the Sacrament.
The Chief Justice : Why ?— Because one of the
elders of the Church told me I could not.
The Chief Justice: You were not prevented
from receiving the Sacrament because of the report
that you had ill-treated your wife ? — I was told I
oould not receive the Sacrament by reason of my
dispute with the Pienaars.
The Chief Justice : A very indirect consequence
indeed.
Continuing, witness said that his wife always
knew where he was going when he left home.
Cross-examined by Mr. Searle: He knew
Pienaar and his wife by sight. He was under the
impression that Pienaar had some ill-feeling
against him, or he would not have spread the
reports which be did. He first began the action
against Barer, d Stevens, but it was dropped
because he had n«t sufficient evidence. His father
had not urged him to bring the action, nor was he
providing the funds.
Mrs. Cilliers (the plaintiff's wife) stated that
there was no truth in the reports that her husband
treated her badly.
Mr. Cilliers, sen , deposed that he had no interest
in the case further than sympathising with his son.
Mr. and Mrs. Pienaar, the defendants, were
examined, and stated that they had simply given
the substance of a conversation which they had
had with Barend Stevens, and denied that in doing
so they had been actuated by malice or ill-feeling.
Mr. Schreiner, for the plaintiff, contended that
the statements made by Pienaar to Mr. Grove' and
Mr. Conradie were malicious.
The Chief Justice: Considering that Pienaar
was a relative — though a distant one— of the Con-
radies, and supposing that he believed that the
reports which he had heard were true, did not a
social duty devolve upon him of informing Mr.
and Mrs. Conradie of what he had heard, and was
this information net privileged ?
Mr. Schreiner : No ; by marriage the husband
becomes the guardian of his wife and privilege
cannot be pleaded against him.
After further argument, the Court delivered
judgment.
The Chief Justice said : There has been no very
great conflict of evidence in this case, but even if
there had been I should be inclined to believe the
evidence of the defendants, and no amount of in-
genuity can extract malice from the words which
they admit they used and which they assert they
heard from Mx. Barend Stevens. In my opinion,
a social duty devolved upon the defendants to tell
the Conradie s what they had heard about their
daughter, and I believe that that communication
was privileged. [His lord ship here referred to
the case of •' Fick v. Watermeyer," (Buoh.
1874, p. 86), in whioh a letter written
by the defendant to his father-in-law reflecting on
the plaintiff, who was engaged to be married to a
lady, a connection of the defendant's, in con-
sequence of which letter the marriage was broken
off, was held by a majority of the judges, the
Chief Justice dissenting, to be a privileged com-
munication.] Continuing, the Chief Justice said
that he did not believe that Mr. Cilliers ill-treated
his wife, nor did he believe that the defendants
had been actuated by malice in repeating what
they had heard from Stevens. The essence of
slander was animus injur iandi, and as there was no
evidence of this animus on the part of the
defendants he was of opinion that they were
entitled to judgment with costs.
203
Mr. Justice Smith : I am of the same opinion,
and I am further of opinion that a social duty did
devolve upon the defendants of informing the
Cooradies what they had heard respecting their
daughter.
Mr. Justice Buchanan : I am of the same
opinion, and I believe that the defendants were
actuated by perfect bona file* throughout, and I
agree that a social duty did devolve upon them of
communicating to Mrs. Cilliers's parents what they
had heard about her.
[Plaintiffs* Attorneys, Messrs. Van Zyl it
Buissinne'; Defendants' Attorneys, Messrs. Fair-
bridge it Arderne.]
SUPREME COURT.
THURSDAY, AUGUST 13.
[Before the Chief Justice (Sir J. H. DE VlL-
LIEBS, K.G.M.6.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
PROVISIONAL ROLL.
MABITZ VS. DBLPOBT.
On the motion of Mr. Tredgold, provisional
sentence was granted on a mortgage bond for £300
with interest at 8 per cent from the 1st January
1891.
FLETCHBE AND CO. VS. LE SUEUR.
Insolvency — Application for compulsory
sequestration — Act 38 of 1884, section 3 —
Notice of intention to surrender — Sche-
dules not filed — Mistake — Locus poenitentice
— Provisional order discharged.
Mr. Juta appeared for the plaintiffs and Mr,
Schreiner for the defendant.
This was an application for the compulsory
sequestration of the defendant's estate. The pro-
visional order was granted on the 14th July last.
The defendant is indebted to the plaintiffs on a
promissory note due on the 1st September next for
the sum of £113 19s. 6d. On the 2nd July last
judgment was granted against the defendant for
£27 18s. 5d., and in pursuance of that judgment a
writ of attachment was issued against his movable
property. Subsequently, on the 3rd September,
the defendant caused a notice of his intention to
surrender his estate to be published in the Govern-
n*nf Gazette. Pefendant alleged ithat he was
exceedingly doubtful at the time he
caused the notice to be inserted in the
Gazette whether his estate was solvent,
and it was not until he had prepared his
schedules that he found out his real position, when
after a careful valuation he discovered that his
assets exceeded his liabilities to the extent of £71
6s. 9d., under which circumstances he did not file
his schedules in the Court of the Resident Magis-
trate as advertised. On these grounds he asked
that the provisional order should be set aside, and
that he miglt be allowed to liquidate his business
for the benefit of all his creditors.
Mr. Schreiner : Although the plaintiffs are en-
titled under Act 38 of 1884, section 8, to make the
present application, still the Court would take
notice of the fact that the promissory note will not
be due until 1st September. The defendant
inserted the notice in th« Gazette under
the impression that he was insolvent,
but when he came to value his assets
he found that they exceeded his liabilities
by £71 6s. 9d. Under these circumstances no judge
would accept his voluntary sequestration, and his
reason for not filing his schedules is thus satis-
factorily explained. The provisional order should
be discharged.
Mr. Juta : The defendant is insolvent. The
value which he has placed on his assets is much
higher than could be realised if they were sold at
current market prices. One creditor has already
obtained judgment against him for £27, and this
amount has not yet been paid. Other creditors
will probably get judgments for their claims ; to
satisfy these judgments the stock will be attached
and sold, and when the promissory note falls due
on the 1st September, there will probably be
no assets to meet the plaintiffs' claim. This is
such a case as the Act contemplates, and final
sequestration should he ordered.
The Chief Justice, in giving judgment, said the
principle upon which the Court had always acted
is that there should be clear proof of insolvency.
When the application for the provisional order was
made there was sufficient proof that the estate was
insolvent. The defendant, subsequent to the
notice in the Gazette of his intention to surrender,
discovered that he had made a mistake, and that
his estate was really not insolvent, and thereupon
exercised his locus pcenitentifBy as he had a
right to do. The defendant appeared to have
acted bona fide throughout, and he ought not to
suffer for a mistake which had been made in
perfect goed faith. Under these circumstances, he
was of opinion that the provisional order should
be discharged, on condition, however, that the
defendant paid the costs of the proceedings.
Leave would be given to the plaintiffs to apply
again if the costs were not paid within a reasonable
time,
204
In re J. N. KNOOP, A LUNATIC.
Mr. Juta appeared for the plaintiff. This
matter, which was partly disposed of on the 6th inst .,
came on for farther hearing. The affidavits of
Dr. Hofmeyr and Mr. Dreyer and the report of the
curator ad litem having been read, the Court
declared J. N. Knoop to be of unsound mind, and
appointed his brother-in law, Mr. H. C. Dreyer,
curator of his person, with permission to the
Master to pay £10 per month for the maintenance
and clothing of the lunatio, and to have him
examined periodically by a doctor.
[Plaintiff's Attorney, C. C. de Villiers.]
REHABILITATIONS.
On motion from the bar, the rehabilitation of the
following insolvents was granted : Louis Stephanus
Leasiug and Nicholas Stephanus Coetzee, J.P.son.
CODSSMAKER V. THE GBIQU ALAND WEST
BOABD OF EXECUTORS.
Cause — Application to remove trial from
Supreme Court to High Court — Dominus
litis — Right of to select his own tribunal.
Mr. Juta appeared for the applicants (defend
ants), and Mr. Schreiner for the respondent
(plaintiff).
This was an application by the Griqualand West
Board of Executors to have the above-mentioned
cause removed for trial from the Supreme Court
to the High Court of Griqualand West. The
applicants based their application on the facts that
considerable expense and inconvenience would be
saved by the case being heard in Kimberley. They
stated in their affidavit that if the case should be
heard in Cape Town it would be necessary for the
secretary, and probably certain other officers of the
cempany, to appear and give evidence at the
trial. That all the witnesses for the company
reside in Kimberiey. That it would be
necessary that various books of account, letter
books, and other documents should be pro-
duced, and that the removal of these from Kim-
berley to Cape Town, and the absence of officers of
the company during the hearing of the case, would
cause very considerable inconvenience and great
expense. That during the hearing of the case
numerous references would have to be made to the
cause of the Board of Executors v. Crouoh and
Crouch, which was heard before the High Court
on the 2nd September, 1890, with the details of
which cause the judges of the High Court are
conversant ; and that therefore it would be more
desirable that the case should be heard before the
High Court. Finally, that the applicants had
made inquiries and found that the plaintiff was
not in a position to pay the costs of the action
in the event of her being unsuccessful, and
that consequently in any event the Board of
Executors would have to pay the coats and expense
of the law-suit, and that such costs and expense
wonld be very much greater if the cause should be
heard in the Supreme Court.
In answer to the above, Mr. Schreiner read the
affidavit of the plaintiff's attorney, Mr. J. Hamilton
Walker, which was to the effect that it would be
undesirable to have the cause removed to the High
Court. That the plaintiff resides in East London,
and that the removal of the ease
would save little or no expense, but wonld
put plaintiff, who is not young, to ad-
ditional expense and great personal inconvenience.
That the matters at issue are as much questions of
law as of fact, and would be more properly dealt
with by the Supreme Court than by the High
Court, inasmuch as such a course would prevent
all ohanoe of the expense of an appeal from the
High Court being incurred. That almost all the
evidence on behalf of the defendants must be
documentary, and very few witnesses would be
required.
Mr. Juta was heard in support of the appli-
cation.
The Chief Justice said that the general prin-
ciple was that the plaintiff was the dominus litis,
and as such had the right to select his tribunal,
unless the defendant showed that the balance of
convenience was in favour of the case being heard
elsewhere. In the present case, the Board of
Executors had not shown that there would be a
balance of convenience in removing the case to the
High Court, and consequently he was of opinion
that the application should be dismissed ; the
question of costs to be reserved.
SUPREME COURT
FRIDAY, AUGUST 14.
[Before the Chief Justice (Sir J. H. de Vil-
liers, K.C.M.G.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
NEL AND OTHERS V. LIND AND ANOTHER.
Mr Searle and Mr. Graham appeared for the
applicants (defendants), and Mr. Schreiner for the
respondents (plaintiffs).
This was an application on behalf of the
defendants in the action, for an order removing
205
the bar filed by the plaintiffs and for leave to the
defendant* to file their pica.
After argument, the Court ordered the bar to be
removed. If necessary, the case oonld be set down
for the 10th September in the event of its not
being heard this term.
MULLBB'8 EXECUTORS V. THE ABGU8
COMPANY, LIMITED.
Company — Agreement to purchase property
— Resident Director — Po\*er to bind Com-
pany — Servitudes.
Mr. Sehreiner and Mr. Graham appeared for
the plaintiffs, and Mr. tiearle and Mr. Shiel for
the defendant company.
This was an action instituted by Mr. Bybrand
Jacobus Mailer and Mr. Cornelia Johannes Muller
(in their capacity as the executors dative of the
estate of the late Gysbert van Reenen Muller),
against Mr Francis Joseph Dormer and Mr. Thomas
Sheffield (in their capacity as the trustees for the
time being of the Argus Printing and Publishing
Company (Limited), for the sum of £2,600, being
the purchase price of a certain store, situated in
Burg-street, Cape Town, with interest from the
80th June, 1891.
The declaration alleged that on or about the
13th April, 1891, an agreement was entered into
between the parties to the suit through their duly-
authorised agents, whereby the plaintiffs agreed to
sell and the defendants agreed to buy the said
property, then in their (the defendants) occupa-
tion, for the sum of £2,500 sterling. (By the
terms of the lease the defendants had the option
of buying the entire block for £6,006.) That it
was thereafter specially agreed that the said price
should be paid in cash upon separate transfer being
effected of the said property by the plaintiffs to
the defendants in due and customary form of law,
which transfer the plaintiffs had tendered, and
new again tender to give. That the defendants
neglected and refused to pay the said sum of
£2,600, with interest, as aforesaid. That the
defendants were, as purchasers, also liable in
accordance wi*h the reasonable custom in that
behalf established, in the absence of any stipu-
lation to the contrary, for the expenses of transfer
and conveyance of the said property, including
transfer duty and survey expenses. Wherefore
the plaintiffs prayed for a judgment for: (a)
The said sum of £2,500 sterling, with interest
from the 80th June, 1891, subject to transfer and
conveyance of the said property to the defen-
dants in due and customary form of law; (6) a
declaration that the defendants were liable for the
expenses of transfer and conveyance, including
transfer duty and survey expenses, or that they
2b
should have such further or other relief as to this
honourable Court might seem meet, togett er with
costs of suit.
The defendants in their plea denied that any
completed and oonoluded sale ever took place
between them and the plaintiffs, but admitted
that they were willing that such a sale should take
place, provided that satisfactory terms and condi-
tions as to the sale and payment, and exercise of
servitudes in respect of the said store and the
adjoining property, now in possession of the
Diocesan trustees of the Cape Town Diocese, could
be arranged. That no such servitudes had been
agreed upon between the plaintiffs and the defend-
ant company, nor had the said servitudes
in respect of the said properties been
agreed and determined upon between them.
They admitted that the custom referred to in the
declaration was a reasonable one, but de nied that
they were liable to the plaintiffs in respect of any
sum by virtue thereof, on the ground that no
completed and concluded sale had ever taken place
between them and the plaintiffs. Upon these facts
and pleadings issue was joined.
Mr. H. A. Bidewell Edwards, examined by Mr.
Sehreiner, stated that he was a broker residing in
Gape Town. In the early part of the year he was in-
struoted by the Diocesan trustees to try and buy
Dr. Anderson's house in Burg-street. He saw the
plaintiffs on the subject and learned from them
that the Argus Company had the option of buying
both the house and the store which they were occupy-
ing for£6,000 until the expiration of tbeir lease
in December, 1892. Witness then saw Mr. Powell,
the company's resident director, and suggested to
him that the company should buy the premises
which they were then occupying for £2,600, and
informed him at the same time that the Diocesan
trustees were anxious to buy the remainder of the
property, and were ready to do so if his company
would abandon their right of purchase. Mr.
Powell agreed to this, and subsequently wrote the
letter of the 7th April. (The following is the
letter referred to) :
April 7.
Messrs. Bidewell Edwards <fe Co.
DEAR SiBS, — Referring to the purchase of the
Burg-street store leased to this company, as to whioh
I have had some verbal discussion with you, I am
authorised by our head office to say that we will
give £2,600 for the store, and upon condition
Messrs. Muller selling us the store for that
amount will forego the option to which we are
entitled under the lease of purchasing the whole
block, including Dr. Anderson's house, for £6,000.
— Yours faithfully,
Edmund Powell, Resident Director.
Witness then saw his olients and the plain-
tiffs, and the transaction was completed.
206
On the 18th April witness wrote te Mr.
Powell accepting the offer of the com-
pany, and handed the letter to Mr. Powell.
Witness also prepared a broker's note for the
Diocesan trustees, and on this note it was stipulated
that the defendant company should have access to
the passage between the two buildings for the
purpose of repairing and painting their outer wall.
Nothing further was said by Mr. Powell with
regard to any other conditions or servitudes.
Gross-examined by Mr. Searle: He never
tendered two broker's notes to Mr. Powell which
the latter declined to accept. He did show
a copy of the broker's note given to the Diocesan
trustees to Mr. Van Zyl and asked him if he
approved of it, but he never asked him
to initial it. He was positive he handed
his letter of the 18th April to Mr. Powell
in his office. Towards the end of April he saw
Mr. Dormer ; the question of the sale was not dis-
cussed. He presented no broker's notes to Mr.
Powell, as he considered that the letter of the 7th
April was sufficient.
In answer to the Chief Justice, the witness said
that in some sales of property, especially in the
oountry, no broker's notes were passed.
Mr. H. T. Standen, of the firm of Wessels &
Standen, slated that he actrd as attorney for the
Diocesan trustees, and prepared the transfers of
the property in dispute. The condition as
to the access to the passage between the
building was approved of by the trustees
at the suggestions of the Messrs. Muller.
(The witness then described the passage between
the buildings and the position of tie windows in
the store occupied by the company.) Continuing,
witness said that when he saw Mr. Powell about
the terms of payment the latter said that the sale
had not yet been completed, as no broker's notes
had passed. Witness said that the sale was
sufficiently proved by the correspondence. Sub-
sequently the Bishop of Cape Town, Mr. Powell,
and witness inspected the premises, and certain
conditions were submitted for the aoceptanoe of
the defendant cempany.
Cross-examined by Mr. Searle : Witness saw Mr.
Dormer towards the end of April, but their inter-
view had reference merely to the terms of pay-
ment, as the Mullers were willing to accept £1,000
cash and allow the balance to remain on mortgage.
The Diocesan trustees were not 'forcing this action.
They were anxious to get transfer, but they had
nothing to do with the present action.
Mr. C. J. Muller, one of the plaintiffs examined,
stated that the store in dispute was let on lease to
the Argus Company. Mr. Edwards had an inter-
view with him with regard to purchasing Dr.
Anderson's house for the Diocesan trustees, but
witness told him that he and his brother had deter-
mined to sell the two properties together, and that
they wanted £5,000. Subsequently Mr. Edwards
showed him Mr. Powell's letter of the 7th
April, and from that he concluded that
the sale had been effected. On the
18th April he saw Mr. Powell in his office,
and showed him the condition as to access to the
passage, and Mr. Powell expressed his satisfaction.
Witness was sure that on this occasion Mr. Powell
said he had received Mr. Bidewell Edwards's letter
of the 13th April. At this interview nothing was
said as to light.
Cross-examined : He did not go to Mr. Powell's
office on the 18th April because there was a hitch
in the sale. The general custom was that the
seller and buyer paid the brokerage between them.
He could not explain why nothing had been said
to the Argus Company about brokerage.
Mr. Sybrand Muller, the second plaintiff,
corroborated the evidence of last witness with
regard to the interview at Mr. Powell's office, an 4
stated that the only interview he had had with Mr.
Dormer had reference to the terms of payment.
Mr. Edmund Powell, examined by Mr. Searle,
stated that he was the resident director of the
company, that the head office was in Johannes-
burg, where the managing director, Mr. Dormer,
resided. He had negotiated the lease with Mr.
Muller, after having received authority from his
Board of Directors. Mr. Bidewell Edwards came
to him in January last, and told him that he had a
good, solid customer for Dr. Anderson's house, but
that he could do nothing unless the Argus Com-
pany waived their option of purchase. Witness
told him that he could not act on his own
responsibility, but that he would wire to Johannes-
burg on the subject, which he accordingly did. Some
few days after Edwards called again, and witness
showed him a wire which he had received from
Mr. Dormer, giving him authority to buy the
store for £2.500. On the 7th April Edwards again
called, and pressed witness for a document showing
that the company were willing to waive their
option of purchase. Witness then gave him the
letter of the 7th April, but distinctly told him that
that letter was given to him subject to conditions
and terms regarding the sale. A day or two after-
wards Edwards returned and said, " It is all settled.
I have sold the property. Here is the broker's
note." Witness was very much surprised, and
refused to accept the broker's note or to
admit that the sale had been completed
as far as the company was concerned. Some few
days afterwards Edwards again came to him and
told him that he had secured a servitude for the
company which would give them access to the
passage. Witness remarked that it was an ex-
cellent condition, and would be considered with
the other conditions of sale. Witness would
swear positively that he never received the letter
of the 13th April, nor did he ever give utterance
20?
to the words alleged to have been spoken by him
by Mr. Edwards. In fact, he had never heard of
the letter until he had received the attorney's
u notice to produce."
Mr. F. J. Dormer, managing director of the
company, stated that he arrived in Cape Town
about 20th April. Shortly after his arrival he had
an interview with Mr. 8. Muller regarding the
terms and conditions of sale. Mr. Muller
remarked that " the matter was all settled." W it-
ness replied that " it was not all settled," as no
understanding had been arrived at regarding the
conditions. Mailer then said that Edwards had
told him that the affair had gone through, but he
would see his brother about the matter,
and let witness know. Witness remarked
that he would only be a few days in
Cape Town, and he should like the matter settled
before he returned to Johannesburg. Witness
subsequently saw Mr. Muller, but he could get
nothing definite out of him. The company were
prepared to complete the sale and take transfer at
once if the question of lights could be satisfactorily
settled. The store would be practically useless if
the windows looking out on the passage were
closed up.
The further hearing of the case was postponed.
SUPREME COURT.
MONDAY, AUGUST 17.
[Before the Chief Justice (Sir J. H. de Villiers,
K.C.M.G.), Mr. Justice SMITH, and Mr
Justice Buchanan.]
M ULLEB'S EXECUTORS V. THE ARGUS COMPANY.
Mr. Schreiner and Mr. Graham appeared for the
plaintiffs, and Mr. Searle and Mr. Shiel for the
defendant company.
The further hearing of this case, which was
partly disposed of on Friday last, was resumed.
Mr. T. J. Anderson, examined by the Court,
stated that he remembered seeing Mr. Powell,
about the hitch in the negotiations regarding the
sale of Mailer's property, as he, witness, was
anxious to get transfer of the Anderson property
for the Diocesan trustees.
In answer to the Court, witness said that he
could not remember from his conversation with
Mr. Powell whether the latter had given him to
understand that a sale of the property had actually
been concluded between the Mailers and the
Argus Company.
Mr. Searle, for the company, contended that they
osuld not be bound by the letter of the 7th April,
as that letter had been given for a specific pur-
pose, namely, to show the Diocesan trustees that
the company were willing to foiego their option of
purchasing the entire bl( ck, and that Mr. Bide-
well Edwards well knew the purpose for which
that letter was given. Mr. Powell had sworn
positively that he had never reeched the
letter of the 18th April, and the only
explanation be (counsel) could give for
the conflict of evidence on this point between
Powell and Edwards was that the latter had left
the letter at the Argxu office, and that it had never
reached Mr. Powell. The company had always
been ready and willing to complete the transaction
if the question of light could be satisfactorily
arranged. Light was of the utmost importance to
the defendants in their business, and if they were
deprived of it they would sustain serious loss and
inconvenience.
The Court, without calling upon Mr. Schreiner,
delivered judgment.
The Chief Justice said : In this case the ques-
tion has not been raised on the pleadings whether
or not Mr. Powell had authority from the Argus
Company to enter into a contract with the Mullers
for the purchase of the store in Burg-street. The
question was, however, incidentally raised during
argument, bat it cannot for one moment be contended
that Mr. Powell had no authority, in the face of
the telegram sent to him as far back as the begin-
ning of February from the head office in Johannes-
burg, stating : " You may arrange f er £2,600." A
free hand was given him, and accordingly com-
munications subsequently took place between Mr.
Powell and Mr. Bide well Edwards, in coti sequence
of which, on the 7th April, Mr. Powell wrote the
following letter to Mr. Edwards. [His lordship
here read Mr. Powell's letter to Mr. Bid* well
Edwards.] Now Mr. Powell in his evidence has
candidly admitted that although this letter was
addressed to Bidewell Edwards it was done so
with the knowledge that it would be shown to the
Mullers for the purpose of getting t heir consent to
the sale. The letter was shown to the Mullers,
and there can be no doubt that after they had con-
sulted with Mr. Edwards they came to the con-
clusion that they should sell this property to the
Argus Cempany, and that they saw the letter which
Mr. Edwards intended to send to Mr. Powell,
accepting the offer. That letter is as follows:
" Dear Sir, — I beg to inform you that I have sub-
mitted your written offer of £2,600 for the store
now occupied by you to Messrs. Muller. and I am
requested to say that they accept the same."
Now, if this letter was presented to Mr. Powell,
there can be no doubt there was a concluded sale.
It might have been neoessary still to settle as to
terms of payment, whether cash or bond, but in
the absence of any settlement as to those terms, it
is quite clear that by law cash would have to be
208
paid by the purchaser on transfer. Mr. Powell,
however, gays he did not receive the letter.
Well, in this conflict of evidence, I am inclined to
believe that Mr. Powell was mistaken — not wilfully
mistaken— but in the press of work he may have
forgotten that this letter was shown to him, and
lef b with him ; further, I incline to that belief
because it is confirmed by the rest of the evidence
in the case. But I think the case may be decided
independently of this letter, because there is
sufficient evidence of an acceptance by Mr.
Powell's communication to the Mullen, for on the
same day this letter was written the Mailers
called on Mr. Powell, and I am satisfied from their
evidence that they clearly understood that there
was an acceptance ; that Mr. Powell knew his offer
had been accepted by them ; and their posit ion and
Mullen' position was this, that they were bound
by the contract, and if Mr. Powell had then
insisted on the Mullen giving the transfer of the
property to the Argus Company, the Mullen
could not have got out of it. They were
sufficiently bound by what had passed to
loek upon this as a concluded contract
of sale. That being so, if the Mullen were bound,
it is equally clear that the Argus Company were
equally bound by what had psssed. Now the evi-
dence of the Mullen is fully supported by the rest
of the evidence, oral and written ; but I must say
I am somewhat surprised that the ease should have
been defended at all, for if the defendants had
recollected the terms of a letter written to Mr.
Steytler on May 27 it would have been found that
it is simply conclusive of the whole case. On
Friday, and after Mr. Dormer had arrived, Mr.
Powell wrote to Mr. Steytler: "Dear Sir,— I
should feel greatly obliged if you will advise me of
the date on which transfer is passed of Mullen'
store, so that we may make provision
for the insurances. It is understood to
be a condition of the sale that we
have free access at all times to the adjoin-
ing premises for the purpose of repairs of
our own." That is the very condition appearing
on the broker's note handed to the Diocese, and
which the plaintiffs' witnesses say had been shown
to Mr. PowelL There is no evidence whatever of
any other condition having been agreed upon. " I
presume," added Mr. Powell, "it will have to
appear in the transfer of Messrs. Muller to the
Diocese." That is the enly condition Mr. Powell
presumes will have to be understood. It is possi-
ble there may have been a mejtal reservation on
his part on the 7th April, but unless his mental
reservation was oommunioated to the Mullersi
they were justified in concluding it was an
out-and-out offer ; and when they accepted it
unconditionally there was a concluded contract to
sell, by which the defendants are bound. It
ia not necessary to go into the question of
servitude. It may well be that by common law
there would be a condition imposed on the
seller, not to deprive the purchaser of his light,
but that question has not been raised The only
defence is that there was no completed contract of
sale, and as to that contract, I am perfectly satis-
fied it was completed. It is possible there may be
a servitude of necessity, or a right to lights
anting »ut of a servitude of necessity, but that
does not arise now. If, hereafter, the Diocese
should block up the lights of the company, it will
then be time enough to prevent it if there ia a
servitude existing. I do not quite Bee how all the
lights could be blocked up in the face of the
servitude which the Diocese is willing to hare
inserted, namely, that the Argus Company has a
right to have free access to the passage between
the two buildings. I trust there will be no diffi-
culty on the part of the plaintiffs and the Diocese
in giving this servitude, which was originally
arranged and endoned on the broker's note ; and
on this understanding I think judgment should be
for the plaintiffs with costs.
Their lordships concurred.
[Plaintiffs' Attorney, C. C. de Villiers ; Defen-
dants' Attorneys, Messrs. van Zyl A Buissinne.]
CURTIS V. DAT.
Debt — Action for — Pleadings — 5th Rule of
Court — Exceptions.
Mr. Molteno appeared for the plaintiff, and the
defendant in person.
This was an action for £60 alleged to be due
under the following circumstances, as detailed in
the declaration : Early in March last the plaintiff
handed to the defendant for collection a promissory
note for £60, dated 5th January, 1891, payable
f ourteendays after date, signed by one Edgar Per-
kins in favour of one Luscombe Searelle, who duly
endoned it to the plaintiff. About the 4th Maroh
Messn. Barnard Bros., of Kimberley, paid the
defendant the sum of £60 on account of Edgar
Perkins in reduction of the abovementioned
promissory note. Thereafter the defendant
surrendered the said promissory note, but refused
to pay plaintiff the £60, and in consequence of
such refusal the present action was brought.
Defendant in his plea admitted that a promissory
note had been handed to him for collection, but
denied that he held the said note on behalf of the
plaintiff. Defendant further pleaded that in the
month of March last the plaintiff handed to him a
certain promissory note for £60, drawn by one
Edgar Perkins in favour of Luscombe Searelle,
for collection, provided £650 was paid to defen-
dant by one Mons. D'Arc, who had arranged and
agreed to pay the said stun to defendant, who held
209
Bdgar Perkins's power of attorney, to receive and
disburse same on his (Perkins) behalf. That
nnder the said agreement defendant received from
D'Arc the sum of £800 only, part of whioh defen-
dant used to pay debts owing to his creditors by
Perkins.
Irrelevant pleas were also raised by the
defendant, and finally he pleaded the general issue.
Mr. Molteno excepted to the plea on the follow-
ing grounds: (1) That the plea had not been
signed by an advocate of the Supreme Court, in
terms of the 5th rule of Court ; (2) that the plea
wm* vague and embarrassing, and did not set out in
order the defence, and that the general issue had
been pleaded.
The Court overruled the first exception, on the
grounds that rule 6 had been considerably modified
by practice, and that it could not have been
intended that, when a defendant elected to conduct
his own case, he should not be allowed to do so.
With regard to the second exception, the Court
intimated that they would hear the evidence before
expressing an opinion on it.
Mr. Richard Curtis, the plaintiff, examined by
Mr. Molteno, stated that in December last Mr.
Searelle was in Cape Town and Perkins in Port
Elizabeth. The latter wanted money to bring the
company to Cape Town. Witness spoke to his
principal, Mr. Searelle, about the matter, and Mr.
Hearelle advanced £260. Of this advance £190
was repaid to Mr. Searelle, and two promissory
notes for £60 each were to be paid to witness, and
he was to ferward the amounts to Mr. Searelle
in Australia. Perkins could not pay the
notes when they became due, and as he
required funds to bring the company to Kimber-
ley, witness went to the defendant and borrowed
£200 for Perkins. Day went to Kimberley with
Perkins, witness arrived about two days after-
wards, and found that defendant and Barnard had
arranged on behalf of D'Arc that Perkins should
perform in the circus instead of in the theatre.
(Perkins had previously borrowed £800 from a
Mr. Galloy.) After this arrangement had been
made D'Arc agreed to pay defendant £240 in
settlement ox* his loan to Perkins, including
interest, and .£800 to Galloy. Witness protested
against the company performing in the circus in-
stead of in the theatre unless Mr. Searelle's
£60 was paid and witness's £50. Subsequently
defendant came to witness, and asked him for
the promissory note and said he could arrange it.
D'Arc then gave defendant a cheque for £260 and
Mr. Levy a cheque for £800 for Galloy. There was
then a balance of £60 which Mr. Barnard handed
to witness. Defendant afterwards took possession
of the £60 and refused to give it up until his
hotel expenses and fare to Kimberley had been
paid, and returned to Cape Town without pay-
ing ft.
Cross-examined by defendant : Perkins could
not leave Port Elizabeth until money had been
sent to him. Witness held a deed of sale over
Perkins's theatrical pr >perty in favour ef Mr.
Searelle, and when execution was issued in Cape
Town against Perkins witness claimed the pro-
perty attached under the deed of sale.
Defendant then entered the box and detailed
the circumstances attending the lean of the £200
and his visit to Kimberley with the Perkins
Opera Company. He said he had always been
ready to pay the balance of the £60, namely,
£39 4s. 8d., after disbursements on account of
Perkins, but he did not know who was entitled to
the money, and had handed it to plaintiff's
attorneys, together with a statement of account to
abide the result ef the present action.
The Court gave judgment for the plaintiff for
£39 4s. 8d. and costs.
[Plaintiff's Attorneys, Messrs. Scanlen <fc Syfret.]
IN BE THE ALBION MASONIC HALL COMPANY,
IN LIQUIDATION.
Mr. Juta presented the first report ef the official
liquidators of the above-mentioned company.
The Court made the usual order as to the report
lying for inspection at the Master's Office and at
the office of the liquidators.
SUPREME COURT.
WEDNESDAY, AUGUST 19.
[Before the Chief Justice (Sir J. H. DE VlLLIEBg,
K.C.M.6.), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
REGINA V. BHENOSTEB.
Mr. Justice Buchanan remarked that this case
had come before him for review from the Resident
Magistrate of Calvinia. The prisoner was indicted
for contravening Act 15 of 1887, for using violence,
threats, and intimidation to induce a certain
servant to leave her mistress's employment. The
prisoner was found guilty, and sentenced to two
months' imprisonment. The Act under whioh the
prisoner had been charged was the Crown Lands
Disposal Act, whioh in no way referred to masters
and servants. But even if the prisoner had been
indicted under the correct Act, there was no proof
whatever that he had used violence, threats, or
intimidation, and under these circumstances the
conviction must be quashed.
210
PETERS V. 8KEAD, COWLING AND CO.
Debt— Action for — Alleged breach of con-
tract — Quarrying operations.
Mr. Schreiner appeared for the plaintiff, and Mr.
Searle and Mr. Jones for the defendants.
This was an action instituted by Mr. George
Peters, of Gape Town, against Messrs. Skead,
Cowling A Co., for the sum of £143 16s.
The declaration alleged that in the month of
May, 1891, the plaintiff entered into two agree-
ments with the defendants, by the first of which
the plaintiff undertook to remove ground from a
certain quarry at the top of Strand-street, Gape
Town, at the rate of Is. 6d. per cubic yard,
and by the second of which the plaintiff under-
took to blast certain rock at the said
quarry at the rate of 2s. per cubic yard. The said
agreements were terminable by notice, and the
defendants gave notice to the plaintiff to cease
working on the 2nd July, 1891, and plaintiff ceased
accordingly. Under the first agreement the plain-
tiff duly removed 883 cubic yards of ground, and
became entitled to receive from the defendants
the sum of £64 4s. 6d. Under the second agree-
ment the plaintiff duly blasted 2,106 oubio yards of
rock, and became entitled to receive from the
defendants the sum of £210 12s. From time to
time the defendant paid to the plaintiff in respect
of the said agreements sums amounting to £116,
and supplied dynamite and other articles te the
sum of £18 Is. 6d. The plaintiff was entitled to
demand, and had demanded, from the defendants
payment of the sum of £143 16s., being the differ-
ence between the amount of the aforesaid sums of
£66 4s. 6d. and £2 1 12s , and the amount of the afore-
said sums of £116 and £18 Is. 6d., but the defend-
ants refused to pay the said sum of £148 16s. or
any part thereof. Wherefore the plaintiff prayed
for judgment for the sum ef £143 16s. with costs
of suit.
The defendants in their plea denied that they
had entered into the two agreements referred to
in the declaration, but admitted that they
had agreed with the plaintiff for the removal of
the ground from the quarry at the rate of Is. 6d.
per cubic yard. They further alleged that towards
the end of May, or in the beginning of June, 1891,
they entered into an agreement with the plaintiff
whereby the latter undertook to excavate and
remove by blasting a certain block of rock situate
in the said quarry, and roughly estimated to
contain about 1,000 cubic yards. That the plaintiff
undertook to blast vertically downwards
from the highest portion of the said block to
a distance of about 26 feet, reckoned vertically
downwards, and to take out and remove by
the above operations the whole block of rock,
leaving as a result of the said operations a flat
surface or platform of rock, extending about 100
feet in length, measured horizontally, along the
face of the said quarry, and about 36 feet in width.
For the said piece of work, the plaintiff was to be
entitled to payment, on completion thereof, at the
rate of 2s. per cubic yard. That the plaintiff failed
to perform his portion of the said agreement, and
instead of blasting the said rock and excavating it
vertically, exoavated about 2. 100 yards of rock from
the said quarry in a sloping direction, leaving
the face of the said quarry on an incline, and
had not blasted, excavated, or removed the solid
rock in the lower portion of the said rock as
stipulated above. That the value of the work
performed by plaintiff, and referred to in the last
paragraph, did not exceed Is. per yard. That the
defendants had from time to time advanced sums
of money to the plaintiff, and that they were will-
ing that the said advances should go in satisfaction
of the work so done, although it had not been per-
formed according to agreement. The defendants
further alleged that they had paid the plaintiff the
whole amount due to him under the first agree-
ment referred to in the declaration— namely, £66
4s. 6d. — and had further paid him £72 10s. 6d., and
they were willing and hereby tendered him
the sum of £32 16s. 6d M being the difference
between £106 6s., the value of the work referred
to above, and the amount of £72 10s. 6d. already
paid, together with taxed costs to date of plea.
Upon these pleadings issue was joined.
Mr. Schreiner, in opening the case, said that
since the declaratien had been filed an account
had been rendered by the defendants, and on
this account plaintiff admitted his indebtedness
to the defendants in the sum of £8 4s. 6d., so
that his claim in the present action would be
reduced to £140 10s. 6d., and £2 9s. in respect of
certain steel of which the plaintiff had only had
the use, and which had been returned to the
defendants, but in their account he had been
debited with that amount.
Mr. George Peters, the plaintiff, examined by
Mr. Schreiner, stated that he was a miner, and
had formerly been in the employment of the
defendants, but left them to go to the Gold-fields.
In May last he asked Mr. Gowling to give him a
job. Mr. Gowling told him to go to the quarry
and he would show witness some work he wanted
to be done. This work was to remove some 883
cubic yards of ground, whioh witness agreed with
Mr. Gowling to remove for Is. 6d. per cubic yard.
Before he had completed the work he asked
Mr. Gowling if he could do some blasting in the
quarry. Mr. Gowling asked him hie price, and
witness said 2s. per cubic foot. Mr. Gowling
told him that he would compare his price with
other offers which he had had, and would let
him knew. Subsequently he gave witness
the contract. Nothing was said about blast-
211
mg the rook vertically, and leaving a platform
or u crushing." Mr. Robertson was to measure
the work, and witness was to be paid on Saturdays
for the work which had been done up to the
previous Thursday. Witness was to find all
materials *>nd tools except steel and hammers.
Witness had done the work in terms of his con-
tract in a workmanlike manner. He blasted the
rock downwards for a distance of 62 feet. No
fault was found with his work until the 2nd July,
when, as he was going to the quarry in the morn-
ing, he met Mr. Cowling, who told him he was not
to do any more work. Mr. Cowling had never
previously objected to the work. Witness had
had some words with the defendants about not
getting his money on Saturdays as had been
arranged.
Cross-examined by Mr. Searle : The contract
had proved a profitable one. He had been
formerly employed by the defendants, and knew
how quarrying should be dene. After the ground
at the top of the quarry had been removed
nothing was said about a steam-drill. Mr.
Cowling never pointed out to Mr. Robertson what
work witness was to do. He did not know how
long Mr. Cowling had been ill. He could not tell
whether Mr. Cowling was angry or not. He had
had twenty-two years' experience in quarrying,
and his work could not have been done better. If
he had not been stopped he would have continued
blasting downwards.
Mr. Wilkinson deposed that he had had long
experience in quarrying. He had seen the work
that had been done by Peters, and was of opinion
that it could not have been done otherwise. The
price was good for the work that had been done,
but if the defendants had allowed the plaintiff to
continue working downwards, they would have
benefited by the contract, as the cost of quarrying
and removing the rock lower down would have
been greater than at the top.
Mr. W. Higgo stated that he had had thirty-five
years experience in quarrying. He had twice visited
the quarry at the top of Strand-street, and had
seen the work done by plaintiff. He was of
opinion that it had been done in a workmanlike
manner, and that the price was fair and reason-
able. Quarrying of this kind was purely a matter
of skill.
Messrs. Stoppings, Steppe, and Newman gave
corroborative evidence.
For the defence, Mr. Searle called Mr. William
Cowling, who stated that he had been working the
quarry for seven years. Plaintiff had formerly
been in his service. When the work of removing
the ground had been completed witness entered
into a new contract with the plaintiff to blast
about 1,000 cubic feet of rock. He told Mr.
Robertson in Peters's presence that he wanted a
platform left on which to erect a steam drill. He
bad been very ill while the greater part of the
work had been done, and could not visit the
quarry very often. On the 2nd July he noticed
for the first time that plaintiff had not been carry-
ing out his contract. He told Peters so, and re-
marked that he had been " robbing the quarry," by
which he meant that he had been blasting the
best rock only. Before his illness the work
appeared to have been done fairly well.
He pointed out to plaintiff distinctly the part of the
rock he was to blast, but he did not tell his fore-
man to see that Peters did not go lower than the
ledge. The firm supplied the tools and other
articles, including the steel which the plaintiff
required, but he had to pay for them.
Cross-examined by Mr. Schreiner : The plaintiff
had been supplied with new steel which he had
cut up. The contract was to remove 1,000 yards of
rook more or less. He might have stopped plain-
tiff when he had blasted 1,000 yards. The crushing
referred to in the correspondence was a mistake.
The amounts paid to plaintiff on Saturdays were
calculated according to the number of men
employed by him. He had twice visited the quarry
whilst the plaintiff was blasting.
Mr. W. Robertson, late Clerk of Works to the
Municipality, deposed that he had seen the ground
before it had been excavated. He took levels to
see how much ground had been removed. During
one of his visits to the quarry, Cowling was there,
and showed plaintiff where he was to make the
platform. He considered 2s. a yard a high price
for the work that had been done ; Is. a yard would
be a fair price.
By the Court : He had never been in the quarry
while Peters was working
Mr. Cairncross, the City Engineer, stated that
he had recently visited the quarry. It did not
appear to have been properly worked. Witness
considered 2s. a yard a high price for the work that
had been done ; he would say 9d. was a fair
price.
Mr. W. H. Chamberlain stated that he bad been
a Government contractor and had built several
bridges in the country, for which he had quarried
his own stone. He was of opinion that Peters
had blasted, not quarried.
Messrs. Beaumann and Skead were also
examined.
Mr. Searle, for the defence, reviewed the
evidence, and contended that the plaintiff had not
adhered to the terms of his contract, and was at
most entitled to a quantum meruit.
The Court, without calling upon Mr. Schreiner,
gave judgment for the plaintiff for £142 19s. 6d.
the amount claimed, with costs,
[Plaintiff's Attorney, G Montgomery-Walker;
Defendants' Attorneys, Messrs. van Zjl & Buis-
sinne.]
212
SUPREME COURT.
THURSDAY, AUGUST 20.
PROVISIONAL ROLL.
MARAIfl V. BAABTMANN.
On the motion of Mr. Schreiner, provisional
sentence was granted on a promissory note for
£1,000, payable at the Western Provinoe Bank.
STANDABD BANK V. BOBEBTSON.
On the application of Mr. Searle, the final
adjudication of the defendant's estate was
granted.
LOTJW V. GBOENEWALD.
On the application of Mr. Maskew, provisional
sentence was granted on a mortgage bond for
£1,000.
UNION BANK, IN LIQUIDATION V. BOSSOUW.
Mr. Schreiner moved for provisional sentence on
a promissory note for £207 15s. 8d.— Provisional
oentence granted.
LOGAN V. CABTEB.
On the motion of Mr. Watermeyer, provisional
sentence was granted for £52 9s. 3d.
GENERAL MOTIONS.
PETITION OF BESSIE PABTBIDOE.
On the motion of Mr. Graham, leave was given
applicant to sue in forma pauperis in an action
against her husband for divorce by reason of his
adultery.
HADJE MOCHAMAT JASSIEM AND OTMEBS V.
THE MASTEB AND O. W. STEYTLEB, (IN HJS
CAPACITY AS EXECUTOB DATIVE OP THE
ESTATE OF THE LATE ABDOL RAGMAN).
Marriage according to Mahomedan rite —
Illegitimate children — Succession through
mother — Funds in possession of Master.
Mr. Searle appeared for the applicants ; and Mr.
Schreiner for Mr. G. W. Steytler.
This was an application for authority to the
Master to pay to the applicants such amounts as
should be found due to them out of the funds in
his hands to the credit of the estate of the late
Abdol Ragman. The matter was before the
Court on the 4th August, when it was ordered
to stand over for further information. The
motion now came on for further hearing.
It appeared from the petition that the applicants,
Hadje Mochamat Jas»iem, Moohamat Gamefa,
and Sohaaka, are the brothers and sister respect-
ively of the late Abdol Ragman, and children of
the late Abdol Garies, who died on the 80th
November, 1867 ; that Abdol Garies by his last
will bequeathed all his property to his wife
Fatima, and to his three sons ; that the applicants
are the surviving sons and daughter of Abdol
Garie« by bis wife Mnrifa ; that their brother
Abdol Ragman died in Dorp-street, Gape Town,
without issue, in October, 1878; that Mr. G. W.
Steytler was appointed executor dative to the
estates of Abdol Garies and Abdol Ragman
respectively ; that Dietje TJys, a sister of Abdol
Garies, bequeathed to him her whole
estate and effects ; that Mr. G. W. Steytler,
as executor dative to the estate of Abdol Garies,
paid to applicants their shares out of the estate
of the late Abdol Garies, including that portion
reoeived from the estate of the said Dietje Uys,
but did not pay to applicants the amount alleged
to be due to them out of the estate of the late
Abdol Ragman, but that he paid the same to the
Master of the Supreme Court. The applicants
applied to the Master for the money in question,
but he declined to part with the funds without
an order of Cour, and hence the present applica-
tion.
The Court held that the applicants, although
illegitimate children of the late Abdol Garies,
succeeded through their mother and were conse-
quently entitled to the funds in question, and
made an order on the Master to that effect, the
order to extend to future funds coming into his
possession from the same estate.
IN THE ESTATE OF THE LATE J. J. VAN
HEEBDEN AND WIFE.
Mr. Schreiner moved for an order in terms of
the Master's report on the reference to him of the
matter.
The Chief Justice, in granting the order, referred
to the stamps on the referenoe, and remarked that
the stamp duty payable on judicial proceedings
generally was enormous.
PETEBS V. PETEB8.
On the application of Mr. Jones, the return day
of the rule was extended to the last day of term.
In re A. H. MCLEOD.
On the motion of Mr. Schreiner, Mr. Alfred
Henry McLeod was admitted to practise as aa
attorney.
218
YTLJOKN'B HBIRS V. VILJOKN'S TBUBTBB.—
(t» re THK INSOLVENT ESTATE OF C. J.
VTLJOEN.)
Insolvency — Trustee — Joint will — Adiation
— Life Interest — Property registered in
name of Insolvent—Rights of heirs-*
Harris v. Bassinne's Trustee (2 Meni.
105) affirmed.
Sir T. Upington, Q.C., appeared for the
applicants, and Mr Schreiner for the respondent.
This was an application by the children of the
insolvent restraining the trustee in their father's
insolvent e«tate from selling or disposing of any
share other than the insolvent's life interest in
certain farms situated in the districts of Uiten-
hage and Jansenville. It appears that on the 7th
May, 1862, the insolvent and his late wife executed
a joint will by whioh was specially bequeathed
to their children as a praelegacy certain landed
property, comprising five farms, and forming part
of the joint estate of insolvent and his wife. The
above bequest was burdened as follows : " And
further, under the burden ofjidei commusum upon
the following conditions and terms, viz., that the
aforementioned landed property shall always be
considered as a family property, bequest, or
disposal (inheritance) by the undersigned's legal
descendants, and therefore that neither the landed
property nor any portion of the same shall be sold,
bequeathed, exchanged, leased, or in any other
manner disposed of than only to or amongst
the legal descendants of the testators."
The will also provided that the survivor
should have a life interest or usufruct
in the farms during his or her lifetime.
After the death of insolvent's wife, in June, 1862,
the will came into force, the insolvent adiated, and
has since enjoyed the usufruct. The farms have
not been transferred to the children, but still re-
main registered in insolvent's name. In 1885 the
insolvent jointly with others bound himself as
surety and prinoipal debtor for £8,000 due by his
brother, on a bond, and pledged as security property
acquired subsequent to his late wife's death. The
principal debtor and all the other sureties have
been excussed by reason of the interest on the bond
being unpaid and their estates sequestrated,
but there is still a deficiency of about
£1,600 os the bond. In consequence of
insolvent's inability to pay this amount, his
estate was sequestrated at the instanoe of the
8outh African Association on the 19th December,
1890 In a previous application on the 18th June
last (1 C.T.LR., 164), the Court ordered the
insolvent to deliver the title deeds of the farms
above referred to to his trustee in insolvency, Mr.
H. Gibson, In the Government Gazette of Friday,
81st July, 1891, the trustee advertised for sale on
Saturday, 22nd August, the insolvent's half -share
as well as his life interest in the farms above
referred to — and hence the present application.
Sir T. Upington, Q.C. : ' he trustee can only sell
the insolvent's life interest. On adiation the rights
of the heirs became vested, and no subsequent act
of the insolvent could have the effect of divesting
those rights. It is true the farms are still registered
in the name of the insolvent, but that fact cannot
prejudice the rights of the heirs under the will.
The Chief Justice referred to " Harris v. Buis-
sinne's Trustee," 2 Mens. 106, (in which it was held,
inter alia, that on the sequestration of a vendor's
estate, no conveyance coram lege loci having been
effected, the dominium of immovable property sold
vested in the Master of the Supreme Court, and
ultimately in the trustees, for the benefit of
creditors.)
Sir T. Upington: The present case is distin-
guishable from " Harris v. Buissinne's Trustee."
It would be a most serious matter if the decision
in that case were to set at naught the express
trusts constituted by the will. Counsel referred
in his argument to the following cases:
" Booysen v. The Trustees, Colonial Orphan Cham-
ber " (Foord's Rep., 48) ; " Oosthnyzen's Tutrix v.
Moffat" (6 Juta, 819); "Van Kooyen v. Gorman
(6 Juta, 66) ; " Haupt v. Van der Heever's Exe-
cutor" (6 Juta, 49).
Mr. Sohreiner : The rights of the heirs are
purely personal. There is abundance of authority
for this proposition. The fact that the inheritance
was adiated can confer bo real rights on the heirs
as against the trustee. Counsel referred to
" Harris v. Buissinne's Trustee " and ' Hiddingh v.
Reubaix" (8 R., 11). The trustee would not
press for the sale of the insolvent's life interest,
but he was clearly entitled to his half-share in the
property.
The Chief Justice, in giving judgment, said that
he had sufficiently indicated his views in the
course of the argument. Whatever rights the
applicants had were purely personal, but they had
no real rights as against the trustee. The trustee
had repudiated the will, and was entitled to the
insolvent's half-share in the properties in question.
Under these circumstances, he was of opinion that
the application should be refused. As the present
issue might have been settled on the previous
application, were it not for the opposition offered
by applicant's oounsel, costs would be ordered out
of the estate.
Their lordships eoBOurred.
PETITION OF NICHOLAS S. MEYEB.
On the application of Mr. Juta, the Court
granted an order declaring petitioner of sound
mind, and releasing his ourator from the charge of
his person and property.
214
WARD V. GERALD AND CO.
Mr. Shiel moved for a rale nut calling upon the
respondents to show eanse why the applicant should
not be admitted to sue them in forma pauperis in an
action for damages for breach of contract.
The Court granted a rule nisi returnable on the
27th instant.
In re MINOR CHILDREN OF THE LATR
ROBERT CHRISTIE.
On the application of Mr. Jones, the Court
granted an order in terms of the Master's report.
RODOLF V. VAN DER MERWE.
Mr. Schreiner applied for an order requiring the
defendant to find security, and failing such
security, to arrest his person ad fundandam
jurisdictionem.
The defendant, who is a peregrinus and domi-
ciled in the Transvaal, but is at present in Cape
Town, is indebted to the plaintiff in the sum of
£34 in respect of his daughter's school fees.
It was stated on affidavit that he was about to
leave for the Transvaal this evening, and hence
the application.
The Court ordered the defendant to find security
in the sum of £50, failing which his arrest.
WOODMAN V. ROBINSON.
On the application of Mr. Juta, to which Mr.
Graham consented, the hearing of this case was
postponed until the 10th September, owing to the
illness of the defendant, who is at present in
Johannesburg. If necessary, the evidenoe of the
plaintiff and the defendant's witnesses to be taken
at an earlier date.
NEL AND ANOTHER V. LIND AND ANOTHER.
Mr. Searle moved for the issue of a commission
to take the evidence de bene esse, on behalf of the
defendant Lind, of Thomas Huge, at Johannes-
burg, S.A.. Republic.
Mr. Schreiner oonsented, provided the oase
came on for hearing on the 10th September.
The Court granted the order, and appointed Mr.
Auret, or in his absence Mr. W. S. Leonard,
commissioner.
In re LAWRENCE V. WARD AND WE88ELS.
Costs — Taxation — Decision of Taxing Master
upheld.
Mr. Juta appeared for the applicant (Ward), and
Sir T. Upington, Q.C., and Mr. Graham for the
respondents.
This was an application by the defendant Ward
for the review of the taxation of the plaintiff**
bill of costs in the cause, and for an order dis-
allowing the several items complained of on the
ground that they were not reasonable charges
against the defendant. In the judgment given in
the oase Ward was ordered to pay the plaintiffs'
costs. He now objected to pay several items con-
nected with the defence of Wesaels on
the grounds that the Court did not
intend to include these expenses in the order.
The chief item objected to was the cost attending
the evidenoe of Mr. Munroe, who had oome from
Kimberley and whose expenses amounted to £20
odd. The Taxing Master held that the order of
Court was wide enough to include, and did include
all the items objected to. In consequence of his
decision the present application was made.
Mr. Juta was heard in support of the appli-
cation.
The Chief Justice, in giving judgment, said the
Court was not now asked to review its own judg-
ment ; indeed, it oould not be asked to do so. The
Court was rather requested to say whether the
Taxing Master had correctly interpreted the
order. His lordship then referred to the
judgment and said It was general in its terms,
and included all expenses necessarily incurred.
In his opinion the Taxing Master had correctly
interpreted their judgment, and under these cir-
cumstances the application must be refuted with
costs. His lordship further remarked that in
applications of this nature it was very desirable
that due notice should be given to the Taxing
Master, so as to allow him sufficient time to prepare
his report.
SUPREME COURT.
MONDAY, AUGUST 24.
[ Before the Chief Justice (Sir J. H. DE VlL-
LIER8, K.C.M.G.) and Mr. Justice BUCH-
ANAN.]
TOPP V. TOPP.
Alimony — Action for.
Mr. Schreiner appeared for the plaintiff ; the
defendant in person.
This was an action for alimony instituted by
Mrs. C. Topp, of Edinburgh, against her husband,
Mr. John Topp, at present living in Cape Town,
and employed as a weighman by the Harbour
Board. The parties were married in 1876, and in
1888 the defendant lef$ his wife and four children,
2i5
and has not since that time contributed to their
rapport and maintenance.
Mr. Schreiner, after stating the facts of the case,
and reading the evidence taken on commission in
Edinburgh, called
Mr. W. Mitchell, clerk to the Dock Superinten-
dent, who stated that he knew the defendant, that
he was employed in the Alfred Dock, and
received 42s. a week wages.
The defendant tb en entered the box, and said that
when he was leaving his wife he gave her half of all
he possessed, namely, £86 ; he had since sent home
about £20. His wages were small, and he could
not afford to allow his wife more than 8s. a week.
The Court, after hearing the evidence, ordered
the defendant to contribute £3 per month towards
the support of his wife and children, the defendant
to pay the costs of the proceedings.
| Plaintiffs Attorney, G. Montgomery- Walker.]
BBA8CH V. BBASCH.
Mr. Jnta appeared for the plaintiff, the defen-
dant in default.
This was an action for restitution of conjugal
rights, instituted by Mr. Joseph Brasch, of Cape
Town, against his wife by reason of her desertion.
The plaintiff in his evidence stated that he was
married to his wife on the 23rd September, 1887.
His wife and he lived together until the 3rd May
last, when she left him and has since refused to
return- His wife had left in consequence of his
refusal to allow his mother-in-law to come and
live with them.
The Court ordered the defendant to return to
her husband on or before the 31st August, failing
compliance with which order to show cause on the
12th September why a decree of divorce should
not be granted.
IN BE THJS CAPE OF GOOD HOPS BANK, IN
LIQUIDATION.
Mr. Schreiner moved for the sanotion of the
Court to certain compromises proposed by the
liquidators.
The Court sanctioned the compromises, objec-
tions (if any) to be heard to-morrow.
IN BE THE PAABL BANK, IN LIQUIDATION.
Company — Bank in liquidation — Compro-
mises — Liability of past shareholders.
A compromise with a present shareholder
releases the former holder of the parti-
cular shares held by the present holder,
bat it cannot release persons who held
shares other than those in respect of
which there has been a compromise.
Sir T. Upington, Q.C., moved for the sanotion
of the Court to certain compromises proposed to
be effected by the official liquidators with share-
holders of tile said bank.
Mr. Juta, who appeared for Mr. G. W. St ey tier,
one of the liquidators and a creditor in the
sum of £6,000, opposed the compromises on the
grounds set forth in Mr. Steytler's affidavits,
which are briefly as follows :
1. That from his official position he could state
that when all present shareholders have been
excussed, there will still be a deficiency of over 10s.
in the £.
2. That he was advised no compromise could be
effected without the consent of all the shareholders
or creditors, and that such consent has not been
obtained.
3. That there are past shareholders of the said
bank who would be liable after exoussion of
present shareholders.
4. That even if the liquidators can show that it
would be more to the benefit of creditors to com-
promise with present shareholders than te excuss
them, he was advised that execution or process in
the nature of execution is necessary to retain a
hold upon previous shareholders who are liable as
past holders ef shares in the said bank.
6. That the Paarl Bank is an unlimited liability
company, and it will be necessary to make a further
call on shareholders.
6. That the Court has already decided that com-
promises with present shareholders cannot be
effected without liberating former shareholders,
who would otherwise be liable.
Mr. Juta contended that if the compromises
suggested by the liquidators were sanctioned, past
shareholders would be released from all liability,
and that, although more might be gained by
accepting the compromises than by exoussing the
shareholders who had made the offers, still the
creditors of the bank generally would suffer by
the adoption of such a course.
Sir T. Upington : The liquidators have care-
fully considered the compromises suggested, and
are of opinion that it would be to the interest of
the liquidation that they should be accepted. Past
shareholders will not necessarily be released from
liability. I can see a difficulty in dealing with
any general question of this description. There
must be information to show that in any special
case the compromise would not be in the general
interests of the Bank.
The Chief Justice : The liquidators have given
certain reasons why the compromises proposed
should be sanctioned by the Court. In the case of
one they said the present shareholder himself
could not pay more than the amount, and they
showed that three past shareholders were men of
straw, and that two were insolvent. In regard to
the other compromise, they said the shares were
216
acquired ao far back as 1881 by the present share-
holder from his father, who was now dead. In
answer to that, all the opponents of the compromise
could say was that there were past shareholders.
That was well known, but what the Court
wanted to know, and what they had -not been
told, was the position of those past shareholders.
Would more be acquired from them, and the
exoussion of the present shareholders, than under
the compromises ? In the absence of any proof to
the contrary, the Court mut t take it that the state-
ments of the liquidators were correct, and that
it was for the benefit of creditors themselves that
the compromises should be sanctioned. It was
said that there was an idea prevalent abroad that
if some of the past shareholders were released they
were all released. He did not know where the
idea was acquired from, the Court had never
said anything to that effect. A compromise with a
present shareholder released the former holder of
the particular shares held by the present holder,
but it did not release persons who held other
shares than those in respect of which there was a
compromise, so that he did not see how such an idea
oould have arisen that the past shareholders would
be released. In the present case there was nothing
to show that the compromises would not be for the
benefit of creditors, and as there was everything to
show that they would be for their benefit, the
Court would sanction them.
Mr. Justice Buchanan concurred in the judg-
ment, and in the exposition of the law given by his
lordship the Chief Justioe.
WEIGHT AND GO. V. THE COLONIAL
GOVERNMENT.
Contract with Cape Government — Deduc-
tions from moneys payable under con-
tract lodged in bank in name of Agent-
General as security for due fulfilment
of contract— -Equitable assignment — In-
solvency of assignors — Notice of assign-
ment — Refusal to recognise same — Trans-
fer of funds to Colonial Treasury — Ces-
sion — Payment by Colonial Government
to cessionaries — Judicature Act of 1873 —
36 and 37 Vic— Cap. 66, sec 26 (6)—
Case governed by English Law.
The law of this colony requires no parti
cular form of words for the purpose of
effecting a complete cession of action.
What it does require is that the intention
to effect the cession should be clear and
beyond doubt, "Fick v. Bierman" (2
Juta ; 26), and that no further Act should
be necessary to complete the cession,
11 Mills v. Benjamin " (Buch., 1876, 115).
If there have been two cessions and the first
cession was completed before the execution
of the second one the first must prevail.
Whatever the rules of the English common
law may have been before 1873, it was a
settled rule of the Courts of Equity that
anything written, said, or done in pur-
suance of an agreement and for valuable
consideration, or in consideration of an
antecedent debt, to place a chose in action
or fiind out of the control of the owner,
and appropriate it in favour of another
person amounted to au equitable assign-
ment. The substauce of the transaction
was looked to and if the intention of the
parties to transfer the chose in action or
fund to the use of the assignee was mani-
fest, the fact that somewhat inappropriate
language was used for the purpose would
not be allowed to defeat their intention.
Notice, however, to the debtor or holder
of the fund was essential to the completion
of the assignment.
Mr. Searle and Blr. Schreiner appeared for the
plaintiffs, and the Attorney-General (Mr. Lines,
Q.C.) and Mr. Giddy for the Government.
This was an action instituted by the plaintiff
company against Mr. James Sivewright, in his
capacity as Commissioner of Crown Lands and
Public Works, for the sum of £3,512, with interest
a tempore morae, alleged to be due under the
following circumstances as set forth in the declara-
tion, which is as follows :
1. The plaintiffs are a firm of bankers carrying
on business at Nottingham in England; the
defendant is James Sivewright, the Commissioner
of Crown Lands and Publio Works in this oolony,
and is sued as representing the Colonial Govern-
ment.
2. By an agreement dated the 16th November,
1888, and made between the Government of the
Colony of the Cape of Good Hope, by the Agent-
General for the said Colony (Sir Charles Mills),
for and on behalf of the said Government of the
one part, and Christopher Firbank and George
Pauling, of 26, Bedford Row, in the county of
Middlesex, trading together under the style of
Firbank & Co., therein and hereinafter called the
contractors, of the other part, after reciting
that the said Government had determined upon
the construction in the said Colony of the railway
from Bterkstroom to AUwal North, hereinafter
Sl7
described, and that the said Sir Charles Mills had
been authorised to enter into that contract for the
construction and temporary maintenance thereof,
the said contractors agreed with the said Govern-
ment and also with Sir Charles Mills, for and on
behalf of the said Government, that they would
construct, execute, and complete in sections the
said railway and works therein mentioned, and
maintain the same f 01 a year after completion for
the sum therein mentioned, to be piid in instal-
ments upon the certificate of the Engineer of the
said Government.
3. Clauses 67 and 69 of the said agreement are
as follows:
"57. As a security for the due performance of
this contract a> sum equal to 10 per cent, of the
amount of every certificate will be ded noted
therefrom until the deductions amount to £19,768,
being 6 pez cent, upon the contract sum. These
deductions will be invested at the risk of the
contractor by the Government, in the name of the
Agent-General, in such securities as the contractor
may select and the Agent-General approve, and
the interest of such investments will be paid to
the contractor as received so long as he continues
duly to perform his engagements under this
contract. The principal moneys, or the securities
for the same, will remain in the hands of the
Government aa a guarantee fund, subject to be
applied as hereinafter mentioned, and subject
thereto one-half thereof, with any accrued interest
not previously paid to the contractor, shall be paid
to him when the due completion of the contract as
regards the construction of the railway and works
shall be certified, and the other half with any
such accrued interest when the due completion of
the contract as regards the maintenance of the
railway and works shall be oertined."
"59. The guarantee fund, and also the moneys
secured on the bond of the contractor and his
sureties hereinbefore referred to, or any part or
parts thereof respectively, shall, if necessary, be
applied in or towards making good any defect or
unsoundness which shall be certified by the engineer
ss existing in the railway and works er any ef them,
or any part thereof, or in the materials used in the
formation and construction thereof, and in making
good any default or neglect of the contractor in re-
lation to the premises, and any breach of covenant
on his part, and subject thereto the-guarantee fund,
or the balance thereof, shall be paid to the con-
tractor on the completion of the contract as
hereinbefore provided."
4. The said contractors have long sin oe completed
the construction of the said railway and works, and
have maintained the same for one year after com-
pletion, and the said railway and works have been
taken possession of by the said Government.
6. Instalments of the contract price for the con-
struction of the said railway were from time to
time in the year 1884 paid to the said contractors,
after making the deductions therefrom specified in
olause 67 of the said agreement. Such deductions
in the year 1884 amounted to the sum of £10,000.
6. The said sum of £10,000 was, pursuant to
clause 67 of the said agreement, invested by the
said Government in the name of Sir Charles Mills
at the request of the said contractors, by deposit-
ing the same with the plaintiffs' bank in the name
of the said Agent-General.
7. From time to time during the year 1886 the
plaintiffs, at the special instance and request of the
said contractors, advanoed to them sums of £6,000,
£4,000, and £3,000 upon loan.
8. For the better security of plaintiffe in respect
of the repayment of the said sums so lent and
advanced the contractors oeded to the plaintiffs
all their right, title, and interest in and to the
said sum of £10,000 deposited with plaintiffs as
aforesaid.
9. Die notice of the said advances and of the
said cessions were given to the said Agent-General as
aforesaid.
10. Thereafter, on or about January 10, 1886,
the sum of £2,426, being part of the said sum of
£10,C00, was withdrawn by the said Sir Charles
Mills acting as aforesaid, and on or absut January
12, 1886 (pursuant to an arrangement previously
made between the parties), the said contractor gave
to the said Sir Charles Mills a receipt for the
said sum, and the said Sir Charles Mills gave to
the said contractors a cheque fer the said sum
which the said contractors paid to the credit ef the
plaintiffs, and the said sum was accordingly re-
ceived by the plaintiffs, and applied by them in
reduction ef the money owing to them in respect
of the said advances.
11. Thereafter, on er about May 11, 1886, the
said Sir Charles Mills, acting as aforesaid, gave
notice that he would withdraw the sum of £8,612,
portion of the sum of £10,000 deposited as afore-
said, on August 2, 1886.
12. Thereafter, on or about July 28, 1886, the
said contractors, by their duly-qualified agent, one
Robert Elliott Cooper, appointed by power of
attorney one George Bvans, the manager of the
plaintiffs' bank at Nottingham, their agent to
receive suoh moneys as might become due and
payable to them from the said Government in
terms of the said contract.
18. On or about July 30, 1886, the plaintiffs gavo
notice to the said Sir Charles Mills, acting as
aforesaid, ef the.appointment of the said Bvans.
14. Thereafter, on or about August 11, 1886, the
plaintiffs, at the request of the said 8ir Ghas.
Mills, acting aa aforesaid, paid the sum of £8,612
te the credit of the said Agent-General at the
Standard Bank of South Africa.
16. The said sum of £8,612 was paid over as
aforesaid upon the condition and with the under-
218
standing that the said sum should he thereupon
paid over to the said Evans, for and on behalf of
the plaintiffs, to be by them applied in reduction
of the aforesaid liability in respect of the said
advances.
16. In breach of his duty, and in violation of
the said condition and understanding existing
between himself and the plaintiffs, the said Sir
Charles Mills, acting as aforesaid, neglected and
refused to pay over the said sum or any portion
thereof, and the Colonial Government, after lawful
demand, still neglects and refuses to pay over the
said sum or any portion thereof.
17. There is now owing to the plaintiffs in
respect of the advances aforesaid a sum exceeding
the amount of £8,612.
18. All things have happened, all times have
elapsed, and all conditions have been fulfilled
necessary to entitle the plaintiffs to recover from
the Colonial Government the sum of £8,512, but
the said Government refuses to pay the said sum
or any part thereof.
The plaintiffs claim :
(a) The sum of £8,512, with interest a tempore
morae,
(6) Such alternative relief as may seem meet.
(c) Costs of suit.
The defendant in his plea denied that the con-
tractors at any time ceded to the plaintiffs their
right, title, and interest to the £10,000 referred to
in the declaration. He further denied that notice
of any cession had been given to the Agent-
General as alleged, but pleaded that on the 13th
June, 1886, the plaintiffs informed the Agent-
General by letter that the contractors had, in the
months of January and March, 1886, given them a
lien upon the retention money deposited in the
plaintiffs' hands in the name of the said Agent-
General, and that the latter refused to admit the
constitution of the alleged lien, and he (defendant)
denied that any suoh lien had been constituted.
The defendant admitted the payment of £2,426
by the Agent-General to the contractors about the
12th January, 1886, and alleged that on or about
the 16th November, 1885, the contractors ceded to
the Cape of Good Hope Bank all their right, title,
and interest to the sum of £8,612 (the amount in
dispute), and to all the said retention money.
The defendant further specially pleaded that in or
about the month of May, 1886, the estate of
Firbank, Pauling 6 Co., being the said contractors,
was sequestrated as insolvent, and the power pur-
ported to be given as alleged in the declaration
was of no force or effect. That thereafter, in or
about the month of November, 1886, the said sum
of £8,512 was by the Colonial Government paid
over to the Cape of Good Hope Bank, with the
sanotion of the trustees of the said insolvent estate
of Firbank, Pauling & Co., given under and by
virtue of a resolution passed at a meeting of
creditors of the said insolvent estate held on the
27th August, 1886, and that the plaintiffs did not
prove as creditors upon the said estate. Finally,
the defendant admitted his refusal to pay over any
portion of the £8,512 to the plaintiffs, and prayed
that their claim might be dismissed with costs.
The plaintiffs in their replication admitted that
on or about November 6, 1886, one Pauling, a
member of the firm of contractors, purported to
make the cession referred to in the plea, bat
alleged that the contractors had already at that
date parted with their interest in the said sum,
and that the said alleged cession was invalid and
of no legal force and effect. They denied any
knowledge of the payment by the Government of
the sum of £8,612 to the Cape of Good Hope Bank,
and refused to admit the same. Upon these plead-
ings issue was joined.
Mr. Searle opened the case, and read part of the
correspondence which had passed between the
parties. In his argument he contended that an
actual assignment had been given to the plaintiffs
long before any assignment had been made to the
Cape of Good Hope Bank, and that Sir Charles
Mills had notice of the assignment. The contract
had been made in England, the money was to have
been paid in England, and Sir Charles Mills had
no right to transfer the money to the Cape as he
had done.
The Attorney-General : It is difficult to gather
from the declaration the exact grounds upon which
the plaintiffs bane their claim. The money alleged
by the plaintiffs to have been the property of
Firbank A Co. was never as a fact theirs, it be-
longed to Sir CharleB Mills, and was lodged in his
name. The money had been paid over to secure
the Government contract being carried out satis-
factorily. There never had been an assignment,
the most that the plaintiffs had ever had was a lien,
and this they had lost when they parted with the
funds.
The Attorney-General had not concluded hia
argument when the Court rose.
SUPREME COURT.
TUESDAY, AUGUST 26.
[ Before the Chief Justice (Sir J. H. DE VlLLlERS,
K.C.M.G.) and Mr. Justice BUCHANAN].
WBIQHT AND CO. V. THE COLONIAL
GOVERNMENT.
The hearing of this case was continued, Mr.
Searle and Mr. Schreiner appearing for the plaintiffs
and the Attorney-General (Mr. Innes, Q.C.) and
Mr. Giddy for the defendants.
219
The Attorney-General continued his argument
tor the defence, and said that the English law had
to be looked to by the plaintiffs in prosecuting
their claim Counsel referred the Court to the
English Judicature Acts, "Brioe and Bannister,*'
3 Q.BJ)., 569 ; " Byrne v. Carvalho," 4 M. and
C, 690; u Ex-parte Montague, in re O'Brien,"
1 Ch. D., 654; "Bell v. London and North-
western Railway Company," 16 Beavan, 648 ;
u Ex-parte Hall," 10 Oh. D., 616 ; Storey. C. of L.,
409 and 417 ; u In re Howse," 8 Juta, 14. The
case, he contended, clearly depended upon the
plaintiffs proving the assignment, and there was
no evidence of such an assignment as the English
law required. There was no order to Sir
C. Mills to pay the money, and there was no
eession from Firbank to Wright, such as the law
required for the plaintiffs to succeed. The whole
kernel of the case was that before November,
1886, the plaintiffs must show that they had an
irrevocable right to claim this money as soon as it
came into the hands of Sir G. Mills. No suoh
right had been proved to exist. There was only
one firm, whether it was called Firbank A Pauling,
or Firbank A Co , or J. <fe C. Firbink. Assuming
there was but this one firm, it was clear that when
Sir C. Mills had the money placed in his hands the
estate of the firm bad been: lequestrated, and the
order of sequestration covered the firm's property
all over the world.
Mr. Searle replied for the plaintiffs, and said
Firbank never claimed this money on
his own behalf, but assisted Mills in every way.
Equity recognisfd the intent, not the form.
Firbank had informed Wright in the most
decisive manner that the money was at his disposal.
In a letter which was put in Firbank definitely
and formally agreed to the assignment to Wright
of the whole of the balance of the
retention fund as security. Wright having
that letter in his hands, the assignment
was complete, except in so far as legitimate
Governmental deductions were concerned. It was
scarcely contended that Wright was prevented
from paying the money away at all, otherwise
there could have been no assignment. Firbank
had never in any way claimed the money,
but had always regarded it as belonging to
Wright. The money was never placed in the
hands of Sir C. Mills with a view to his
dealing with it independently, but simply as a
matter of form, in order that he might make
legal deductions due t» him, and then hand over
the balance to the plaintiffs, whose property
it was. Sir C. Mills took up the position
that the money was not assignable at all,
which was a wrong position, looking to the
terms of the contract. The money was clearly
money that Firbank could deal with, and if there
bad been a dispute between h|m and ithe Agent-
General he could have come into court and
demanded the return of the money, subject to the
right of the Agent-General with regard to legiti-
mate deductions, it was perfectly clear that there
were two firms, one in Eng'and and one at the
Cape. It was scarcely to be said that an in-
solvency here debarred the persons in England
dealing with the moneys of that firm, so far as
their English domicile was concerned, in the
absence of bankruptcy proceedings in that
country. The rights now in dispute were
acquired in England and oould not be
affected by the insolvency in the Cape Colony.
Counsel quoted : Snell on Equity, 6th ed., ch. 5,
186 and 139 ; Robson, 6th ed., 889 ; " Gladstone v.
Musarus Bey and Others," 8 Jurist, N.S., 71 ;
"Morgan v. Lariviere," L.R. 7; English and
Irish Appeal Cases 428, and LJ. 44, N.S., 467 ;
" Twycross v. Dreyfus," L.R. 6 Ch. D., 606 ;
a Ex-part* Morgan," 12 Vesey, 6 ; " Langton v.
Horton," 1 Hare, 549 ; and M Byrne v. Cavalho,"
4 M. and C, 690.
Cur ad vult.
Pottea (8th September).
The Couit delivered the following judgments.
The Chief Justice said: The plaintiffs are
English bankers who, in the year 1886, lent and
advanced to the contractors for the construction of
the railway from Sterkstroom to Aliwal Nerth
various sums of money, amounting in all to £18,000.
Before that year the Agent-General for this colony
had deposited sums amounting in all to £10,000
with the plaintiffs, on interest, in terms of the
67th clause of the agreement of 16th November,
1883, made in England between the contractors
and the Agent-General. The clause is as follows :
" As a security for the due performance of this
contract, a sum equal to 10 per oentum of the
amount of every certificate will be deducted there-
from until the deductions amount to £19,768, being
6 per cent upon the contract sum. These deduc-
tions will be invested at the risk of the contractor
by the Government in the name of the Agent-
General, in such securities as the contractor may
select and the Agent- General approve ; and the
interest of such investments will be paid to the
contractor as received so long as he continues
duly to perform his engagements under this
contract. The principal moneys or the 'securi-
ties for the same will remain in the hands
of the Government as a guarantee fond, subject to
be applied as hereinafter mentioned, and subject
thereto, one half thereof, with any accrued interest
not previously paid to the contractor, shall be paid
to him when the due completion of the contract
as regards the construction of the railway and
works shall be certified, and the other half with
any such accrued interest when the due completion
of the contract as regards the maintenance of the
railway and works shall fee certified," The in-
220
tercet on the deposits, m it accrued, was not paid
direct to the Agent-General, but, with hie consent,
it was transferred from his aooonnt to the con-
tractors 1 current aooonnt with the plaintiffs
(letter of January 9, 1885). The loan of the
plaintiffs to the con tractors was made in three
soma of £6,000, £4,000, and £8,000 respectively.
On the occasion of the first loan Fairbank. on
behalf of himself and his oo-oontraotor Pauling,
sent the following letter, stamped, it would appear,
as a deed of assignment, to the plaintiffs: "Jan-
nary 12, 1885.— Dear Sirs,— With reference to my
proposition to yon to-day for a loan at 6 per cent,
interest, which loan I expect to extend to say four
months, I shall be willing to deposit with you as
security £24,000 Graham's Town and Port Alfred
Railway shares, and also I will undertake in no
way to assign or deal in to anyone else,
say, £7,000 of the retention fund on the
Aliwal North contrast yen now hold through the
Agent-General of the Cape, and I empower
yen, before paying over to me under order of the
Agent- General that sum, to satisfy yourselves as
to that loan. It is, however, understood that this
lien upon the retention is subject to the Agent-
General's rights under my contract. — Yours,
Christopher Firbank, for self and partner." On
the oocasion ef the second loan the contractors
requested the plaintiffs to furnish the form of
letter which should be written by the contractors
as security, and accordingly the following form
was sent to, and duly copied, stamped, and signed
by the contractors : " March 1 1, 1885.— Dear Sirs,—
In consideration of your granting to my firm of
J. <fe C. Firbank & Co. a further advance of
£4,000 .... I hereby further undertake to
give you a lien upon the remaining £8,000 until
you have been repaid the said further sum of
£4,000 now advanced by you. It being under-
stood that your lien upon the whole of the reten-
tion money is subject to the Agent-General's
rights under my contract .... Yours,
Christopher Firbank." On the occasion of the
third loan a third stamped letter was written by
Firbank to the plaintiffs, by which the writer
expressed his willingness to assign a further sum
of £8,000 of the retention money as security for
the fresh loan ef £8,000. On the 18th of June,
1885, the plaintiffs wrote to the Agent-General
as follows : w We beg to give you notice that by
three separate letters of agreement from Messrs.
Firbank & Co., dated respectively January 2,
March 11, and March 28 ef this year, they have
given, to us a lien upon an aggregate sum of
£18,000 of the retention money of the Aliwal
North railway contract, £10,000 of whioh is now
deposited with us in your name, such lien being
of course subject to your rights under their con-
tract. We presume you will not require to see
these documents until the money becomes paya-
ble.' The Agent-General wrote in answer :
w Under no circumstances oan I recognise or
sanction any dealings with the moneys in question
by any person other than myself whioh may be
deemed to alter or affect the original terms of
deposit, or limit my right to call for the moneys
when wanted " The plaintiffs in reply wrote :
" Messrs. Firbank gave us (with other securities)
the lien, subject to all existing rights on your part
respecting it, with the intention that when (if ever)
the terms of the contract were fulfilled, and yon
were in a position to pay over the whole or part of
the retention fund to them, we should be entitled
to receive it direot from yon on their behalf
in repayment of advances made to them"
The letter oonoluded by expressing the
hope that the Agent-General would acoept
the notice ef the 18th of June, but he declined
to do so. On the 16th of November, 1885, the
contractors " ceded, a feigned, and transferred 1 * to
the Cape of Good Hope Bank all such rams of
money as they might become entitled to under
their contract with the Government, and appointed
the manager of the bank as their attorney irre-
vocably to recover suoh moneys from the Govern-
ment. The oession contains the signature of
George Pauling as well as of the three firms, viz.,
J. 6 F. Firbank & Co., Firbank, Pauling * Co.,
and Firbank & Ce., these being the different styles
assumed by the contractors in carrying on their
business. On the 7th of January, 1886, the
A gent-General requested the plaintiffs to pay to
his credit in the Standard Bank the sum of
£2,426, being part of the £10,000 which ho bad
deposited with the plaintiffs. The object of the
withdrawal was to enable him to pay that sun
direot to the contractors, for he seems at this time
not to have been aware of the cession to the Oape
of Good Hope Bank. The plaintiffs, in answer,
said that as they had a lien on the retention money
due to the contractors when released by the
Agent-General, they wished payment to be made
to the contractors by a cheque crossed with the
name of the plaintiffs* firm. The Agent-General,
in reply, " intimated his inability to comply with
this request, except at the instance of Messrs. Fir-
bank <fe C*. themselves,*' and ultimately, on 12th
January, 1886, he gave an unorossed cheque to the
contractors, who passed the money to the plain-
tiffs' credit. On 8th April, 1886. the estate of
the contractors, under the style of Firbank, Paul-
ing & Co., was sequestrated in this colony as insol-
vent. On the Uth of May, 1886, the Agent-
General gave notioe to the plaintiffs that he would,
on the 12th of August following, withdraw a sum
of £8,512, being part of the guarantee fund. On
the 1st of June following the plaintiffs wrote to
him requesting him to inform them whether that
sum had been earned by the contractors, and
would be placed at the disposal of the plaintiffs on
221
or after the 12th of August, but the Agent-General
refused to add anything to his notice of with-
drawal Accordingly in July the plaintiffs
obtained a substituted power from the contractors'
agent in England, and he himself wrote as follows
to the Agent-General : u As part of the retention
fund will shortly fall due, we beg to inform you
that Mr. Geo. Evans holds our power of attorney,
and will receive and grant the necessary receipt
for such retention fund when payable. As you are
aware, our interest in that furd was assigned to
Messrs. Wright A Co. by agreements dated
January 12 and March 11, 1885, as security for
an overdraft at their bank." The Agent-
General, in answer, wrote that the matter
would have his attention when the necessary
authority should have been received from the
Cape Government, and on the same day he wrote
a similar answer to the plaintiffs' letter, enclosing
the power of attorney. On the 11th of August the
plaintiffs, wbe were not then aware of the cession
to the Cape of Good Hope Bank, sent a draft for
£3,512 to the Agent-General, and on the 25th May
wrote to him asking when payment of that sum
would be made to them, and offering to send the
contractors' letters of agreement to him for
perusal. The reply, dated the 27th of August, was
that the plaintiffs' letter would be submitted to
the Colonial Government for instructions. The
instructions appear to have been that the money
was to be sent to the Cape, and it was so sent. By
this time the line of railway had been completed,
there was no balance due from the contractors to
the Government, and since that time the plaintiffs
have retained the balance of retention money, vis.,
£4,062, which had been deposited with them by the
Agent-General. On the 27th of August, 1886, the
creditors of the insolvent estate of Firbank,
Pauling A Co. passed a resolution authorising
the payment of the Aliwal North Rail-
way retention fund to the Cape of
Good Hope Bank. In the month of
November following the Government, with the
consent of the trustees of the insolvent estate,
paid the sum of £8,512 to the Cape of Good Hope
Bank. The object of the present action is to
recover this money from the Government. It is
obvious from the facts, which I have endeavoured
to state as fully and dearly as possible, that the
real question to be determined is whether before
November, 1885, the date of the cession to the
Cape of Good Hope Bank, the plaintiffs had
acquired such an interest in the retention fund
deposited with them as could not be defeated by
that cession or by the subsequent insolvency of the
contractors. The law of this colony requires no
particular form of words for the purpose of effect-
ing a complete cession of action. What it does
require is that the intention to effect the cession
should be clear and beyond doubt, as was decided
2a
in M Pick v. Bierman " (2 Juta, 26), and that no
further Act should be necessary to complete this
cession, as was decided in " Mills v. Benjamin "
(Buoh., 1876, 115). In the former case an oral
cession was relied upon, but the Court held
that, although writing was not essential, a
loose understanding such as had been deposed to
could not be taken to amount to such a complete
transfer of the alleged cedent's rights as to avail
against his creditors in insolvency. In the latter
case the Court held that the mere fact that a bill
of exchange in favour of Mills had been obtianed
by Benjamin from one branch of the Standard
Bank upon another branch for the purpose of
paying a debt due by Benjamin did not amount to
a cession of the right to the money in favour of
Mills. The bill had been obtained for the purpose
of being sent to Mills, but in fact it was not sent,
and the Court held that the cession was not com-
plete. In both cases the Court took for granted
that if an insolvent had been divested of his right
of aotion against his debtor and had before insol-
vency transferred his right for valuable considera-
tion the cessionary would, in competition with the
creditors of the insolvent, be entitled to the benefit
of the proceeds recovered from the debtor.
The same rule would apply a fortiori to any
competition arising with a subsequent cessionary.
If the first cession was completed before the
execution of the second one the first must
prevail. It is common cause, however, in the present
case that the question whether the assignment to
the plaintiffs was complete must be decided by
the law of England, where the contract with the
contractors was executed, and where the deduc-
tions were invested. We have not been favoured
by either side with the evidence of experts as to
the law of England, but I am satisfied that
although the legal phraseology is very different
there is no substantial difference in the principles
of law applicable to the present case. Such
differences as exist do not materially affect the
present case. Whatever the rules of the English
common law may have been before 1873, it was a
settled rule of the Courts of Equity that anything
written, said, or done in pursuance of an agreement
and for valuable consideration, or in consideration
of an antecedent debt, to place a chose in action or
fund out ot the control of the owner, and appro-
priate it in favour of another person amounts to
an equitable assignment. The substance of the
transaction was looked to, and if the intention
of the parties to transfer the chose in
action or fund to the use of the assignee
was manifest, the fact that somewhat inappropriate
language was used for the purpose would not be
allowed to defeat their intention. Notice, how-
ever, to the debtor or holder of the fund was
essential to the completion of the assignment.
Thus, in the leading case of " Rvall v. Bowles "
222
(1 Ves., Sea, 848), it was held that in order com-
pletely to divest a bankrupt of debts owing to him
be mast have done everything that is equivalent
to a delivery of movable goods, and one of the
judges, Sir Thomas Parker, said that that which
is equivalent to delivery of movables is, in the
oase of a debt, an assignment and delivery of the
security and notice to the debtor of the assign-
ment. And in the case of "Dearie v. Hall"
(8 Buss, 48), Lord Lyndhurst observed that in
oases like the present the act of giving the trustee
notice was, in a certain degree, taking possession of
the fund ; it was going as far towards equitable
possession as it was possible to go; for, after
notice given, the trustee of the fund becomes a
trustee for the assignee who has given him notice.
The twenty-fifth section (sub-section 6) of the
Judicature Act, 1873, retains the necessity
•f notice, but the Court has not been
favoured with any arguments as to
whether that section was intended to
modify in other respects the rules as to
equitable assignments which had up till then
been adopted by the Courts of Equity. The sub-
section reads as follows : " Any absolute assign-
ment by writing under the hand of the assignor
(not purporting to be by way of charge only) of
any debt, or other legal chose in action, of which
express notice in writing shall have been given
to the debtor, trustee, or other person from whom
the assignor would have been entitled to receive or
claim such debt or ohose in action, shall be and be
deemed to have been effectual in law (subject to
all equities which would bave been entitled to
priority over the right of the assignee if this Act
had not passed) to pass and transfer the legal
right to such debt or chose in action from the date
of such notice, and all legal and other remedies for
the same, and the power to give a good discharge
for the same without the concurrence of the
assignor." In the case of " Brice v. Bannister "
(L.B., 8, Q.B. Div., 569), one Gough had agreed to
build a vessel for the defendant Bannister, the
price of which was to be paid by instalments
Before the vessel was finished Gough,
being in debt to the plaintiff Brice, by
an instrument in writing directed the
defendant to pay to the plaintiff £100
out of moneys due or to become due from the
defendant to Gough. At this time ail the instal-
ments then due had been paid by the defendant to
Gough. Notice of the instrument was given to
the defendant, but he refused to be bound by it,
and he afterwards paid to Gough the balance of
the price of the vessel, being more than £100.
In an aotion before Coleridge, C.J., to recover this
balance it was contended on behalf of the de-
fendant that judgment ought to be entered for him
on the following (grounds : (1) That at the time
of giving the order there was nothing due to
Gough, and therefore there was nothing which
oould be assigned by him by virtue of the Judi-
cature Act, 1878 ; (2) that there was no binding
acceptance of the order by the defendant ; and
(8) that had not the defendant made advances to
Gough, or to his creditors other than the plaintiff,
Gough would never have been in a position to be-
come a creditor ef the defendant. Lord Coler
idge, however, held that the fact that the actual
sum assigned under the order had not become due
was not material in reference to the power of the
plaintiff to enforce it, and that it was no straining
of the words of the sub-section I " to construe the
request to pay as an absolute assignment of the
debt.*' On appeal the judges of the Court of
Appeal seemed to ignore the statute altogether,
but decided the oase upon the general principles
of the Courts of Bquity. The third objection
which had been taken in the Court below weighed
most with them, and Brett, L.J ., was in favour
of allowing the appeal on the ground that
business transactions should not be hampered by
any equitable doctrine which will prevent a man
from doing what he might otherwise do meiely
because something had happened between other
parties. The majority of the Court, however,
held that the equitable doctrine which allows a
man to assign a debt, even though not yet due,
and allows the assignee to bind the debtor by
notice was applicable and ought not to be
departed from . In the present cafe it is admitted
that, whether the contractors' dealings with the
plaintiffs amounted to asssignment or not, the
Agent-General had full notioe of those dealings,
and that he represented the Colonial Government
for the purpose of receiving tuch notice.
His objection to the notice was not
that there had been no absolute assignment,
or that it purported to be by way of charge only,
but that he could not recognise any dealings with
the fund deposited with the plaintiffs which might
limit his right to call for the money when wanted.
He was promptly informed that there was no
intention of limiting that right, but he would not
accept any obligation towards the plaintiffs,
although it was to accrue only after the fund had
been paid to him. The documents upon which
the plaintiffs relied were offered to him for inspec-
tion, but he refused to look at them. The great
difficulty which has weighed with me in this case
is that there is a seeming unfairness in expecting
a debtor to asoeitain from loose agreements be-
tween his creditor and a third person whether
there has been an absolute assignment or not, but
the difficulty vanishes where the debtor says in
effect : " Your mutual agreement does not concern
me, for when the debt becomes payable I shall
deal with it, as I shall then be advised whether it
has been assigned or not." If the objection had
been tal^en that there is no single formal document
223
effecting in terms an absolute assignment of
the fnnd, the plaintiffs would, I have no
doubt, have been able to procure such a document
from the contractors. As the matter now stands,
we have to look at the whole of the correspondence
between the plaintiffs and the contractors to ascer-
tain the true nature of their dealings. Three of
the letters written by the contractors are duly
stamped — I presume as deeds of assignment— but
we are net on that account precluded f rjm con-
sidering the rest of the correspondence, without
which the three more formal documents are some-
what obscure. In two of these documents the
right assigned is loosely described as a " lien" on
the fund, but this term appears to have been used
because, until the money became payable to the
contractors, it was to remain on deposit with the
plaintiffs. The third document, which refers to
the transfer of the fund not yet deposited with
the plaintiffs, uses the more correct term " assign."
In the rest of the correspondence the terms " lien "
and " assignment M appear to have been treated as
convertible terms. For example, on the
6th of March, 1885, the plaintiffs write
to the contractors : " Would you kindly
write us a further letter assigning the
remainder of the retention fund to the bank
(making in all £10,000, the amount now in our
hands). On receipt of this we will then give
notice to the Agent-General of our lien upon this
amount,'* and the contractors, in their reply dated
7th of March, 1886, say : " As to your giving notice
to the Agent-General of my firm's assignment, of
course there can be no objection to that, but I
should like for choice (if you would agree) that
the notice should not be given until, say, towards
the end of this month ; in the meantime I will
assure you that no other assignment of any part of
the retention fund except to yourselves either is or
shall be made." As between the plaintiffs and
the contractors it was dearly intended that there
should be an absolute assignment of the fund, and
not a mere charge upon it. The fact of this being
their intention was conveyed to Sir Charles Mills.
If he had asked for an inspection of
the documents relied upon he would, I
think, have been justified in requiring a less
ambiguous and more simple form of assignment
before consenting to act upon it, but by his conduct
he must be taken to have waived any objeotion on
his part to the form of assignment submitted to
him. After the money had been paid to him he
might have protected himself against liability by
paying it into the High Court of Justice in terms
of the proviso of the 6th sub-section already men-
tioned, but he preferred to await instructions from
the Colonial Government. No question of privi-
lege has dow been raised on behalf of the Gov-
ernment, so that the question at issue must be
decided as if it b»d been raised between private
individuals. The contractors' letters to the plain-
tiffs in my opinion constituted an absolute assign-
ment of the sum of £8,512 under the Judicature
Act, as well as according to the doctrines of the
Courts of Equity before and after the passing of
that Act, and the fact that the term " lien" has
been inappropriately used in two of the stamped
letters does not prove that the assignment purports
" to be by way of charge only." Due notice of such
assignment having been given to the Agent-
General no subsequent assignment could
override the rights of the plaintiffs, and the Gov-
ernment was not legally justified in paying
the money in their hands to the Cape of Good
Hope Bank, even with the consent of the trustees
and creditors of the insolvent estate of the con-
tractors. The judgment of the Court must there-
fore be for the plaintiffs for the sum of £3,612,
with interest from the date of the summons, and
with costs.
Mr. Justice Buchanan said : It is oommon cause
that this case must be decided according to the
law of England. After the judgment just given
by the Chief Justice, I need not restate the facts.
The issue depends on the question whether or not
Messrs. Firbank <fe Co. executed what that law
would hold to be assignment of the money coming
to them under the contract with the Colonial Gov-
ernment to the plaintiffs. It is open to doubt
whether the English Courts would apply to this
case the rules which, before the passing of the
Judicature Act (86 and 87 Vic , c. 66), determined
what amounted to an equitable assignment, or
whether the statute would now be held to prevail.
The equitable rules are certainly more flexible
than the statutory ; but I think the case may be
decided under the statute. By the sixth sub-
section to section 25 of the Judicature Act, to
entitle the plaintiffs to succeed there must have
been an " absolute assignment by writing under
the hand of the assignor, not purporting to be by
way of charge only," of the debt. I have not
found it easy, on reference to the English deci-
sions, clearly to define the line of demarcation
between an "absolute assignment" and a
" charge." It has been laid down that an " abso-
lute assignment" need not necessarily be an
equivalent to a sale out and out, while a
oharge is stated to be a mere appropiia-
tion of a particular fund to a par-
ticular debt. In the case of the " National
Provincial Bank of England v. Harle "
(6 Q.B. Div., 626), it was unsuccessfully argued
that " absolute " meant unconditional, not that it
must be defeasible on repayment ; and that a
" charge " was a mere appropriation, not passing
the property. This case, which was decided by a
single judge, was afterwards " distinguished " by a
Divisional Court from M Burlinson v. Hall" (12
Q.B. Div., 847), and disapproved of in " Tancre4
tol
v. Delagoa Bay and Baat Africa Railway Com-
pany (28 Q.B. Div., 289). In " Burlinson v. Hall,"
Day, J., said: "A ( charge' on a debt confer*
rights on the person to whom the charge is given
to have it enforced by assignment, not an action
against the debtor, but by proceedings against the
person who created the charge to assign the debt."
In Tancred's case a mortgage of debts due to the
mortgagor, made in the ordinary form, with a
proviso fer redemption and reconveyance upon
repayment to the mortgagee, was held to be an
absolute assignment, not purporting to be by way
of charge only. In applying the provisions of the
statute to the case before us, a difficulty is created
by the document, duly stamped as a deed of assign-
ment, purporting to give a " lien " on the money
deposited with the plaintiffs by the A gent- General.
But looking at the whole of the writing between
the parties, there can be no doubt that both sides
intended that there should be an absolute assign
ment. Firbank <fc Co. say so in express terms. In
the absence of authority to the contrary,
I think the Court might fairly look at
the whole of this correspondence, and not
confine its attention exclusively to the one
letter which, for purely revenue purposes, was
stamped as required by law. The case of " Ex
parte Hall " (10 Chancery Division, 615), cited in
argument, would seem to imply that in such a
case as the present English Courts would look at
the whole transaction. But even if we are con-
fined to this one document, and endeavour to
gather from it alone the true substance of the
transaction between the parties, it appears to me
that there was an assignment given, and not a mere
charge created. There was certainly much more
than a mere request, or revocable authority. The
letter is not an appropriation only of the fund to
the payment of plaintiffs' claim, but it gave them
the right to the whole of the amount due under
the contract with the Colonial Government. The
word " lien " was only used because at the time of
the assignment the fund was deposited with the
plaintiffs themselves as bankers, but it was
intended that the plaintiffs should receive the
money frcm the Agent-General when any olaims
against it by the Colonial Government should be
satisfied. It is admitted that no olaim accrued to the
Government against the fund, and that this case is
now practically a contest between the plaintiffs
and the Cape of Good Hope Bank, to whom the
Government paid the money under indemnity.
The Cape of Good Hope Bank held a clear out-
and-out assignment, but it was granted some
months subsequent to, and in violation of, the con-
tract between Firbank & Co. and the plaintiffs. If,
then, the plaintiffs also obtained an assignment, as
theirs was prior in point of time, they are entitled
to succeed. I therefore concur in judgment being
given for the plaintiffs with costs.
[Plaintiffs' Attorn*} s, Messrs. Fairbridae &
Arderoe ; Attorneys for the Government, Messrs.
Reid & Nephew.]
SUPREME COURT.
TUESDAY, AUGUST 26.
[Before the Chief Justice (Sir J. H. DB
Villiers, K.C.M.G.) and Mr. Justice
Buchanan.]
SOLOMON V. WOOLP.
Mr. Schreiner for the applicant ; Mr. Juta for
the respondent.
This was an application to make absolute a rule
nisi granted by the Court to restrain the respondent
from removing certain movable property, or
injuring immovable property situated in Wynberg,
registered in the applicant's name.
Mr. Juta read an affidavit of the respondent,
Victor Woolf , who alleged that the applicant was
possessed of no property of her own, but that she
was in possession of property belonging to Victor
Woolf <fe Co. In seeking to retain the property,
deponent was acting only in the benefit of the
creditors of the firm of Victor Woolf & Co., to
which firm applicant's husband was indebted in
the sum of £4,000. If the order were made
absolute deponent would be most seriously
prejudiced in an action he was instituting against
the applicant and her husband. Counsel further
read an affidavit of Blias Harris and Henry Cohen,
to the effect that Solomon said that the property
in dispute was purchased on behalf of the firm of
Viotor Woolf & Co., in which he was then a
partner.
Mr. Schreiner read an answering affidavit.
Mr. Juta said that Mr. Woolf stated distinctly that
the property belonged to the firm. His client was
willing to consent to the interdict if the other aide
would give an undertaking not to deal with the
property. The property was registered in Mrs.
Solomon's name, and therefore, prima facie, hers,
but Mr. Woolf had been in possession for the past
eight months.
The Chief Justice : Is there any allegation that
Mrs. Solomon intends to sell the property ?
Mr. Juta said certainly, and that it was not
denied that the property was to be realised for the
benefit of Mrs. Solomon.
225
The rale nisi was made absolute with costs, bat
the Chief Justice said that certain statements had
been made in the affidavits which might give the
respondent a right to an interdict, and ultimately
a right to have the transfer stt aside. If a rule
nut were asked to restrain Mrs. Solomon from
parting with the property it might be granted at
once, but the necessity for such a proceeding might
be obviated by Mr. Schreiner undertaking on
bthalf of his client net to dispose of the pro-
perty.
Mr. Schreiner said his client was prepared to
meet any action.
The Chief Justice, in giving judgment, said the
tule would be made absolute with coats, but in
reference to the fresh application, the Court would
grant a rule nisi calling upon the
respondent (Mrs. Solomon) to show cause,
net later than 12th September, why
she should not be restrained from selling
the house and furniture pending an action
to be forthwith brought against her, the rule to
operate as an interdict as soon as it was certified
to the Registrar that the costs of the application
had been paid by the respondent (Mr. Woolf).
In re THE MINOR WESSEL8 H. MOOLMAN.
On the motion of Mr. Juta, the Court granted
an order authorising the tutor dative of the said
minor to join with other co-owners ef certain
farm, known as Buffelsbosoh, in the district of
Humansdorp, in a partition into defined shares on
the basis of a survey already made and agreed
upon.
IN THE ESTATE OF THE LATE ISAAC JUKKIE.
Mr. Joubert moved for an order authorising the
Matter to pay out certain moneys in this estate,
amounting to £202.
The Court granted a rule nut, calling upon all
persons concerned to show cause on the 12th
September why three-fourths of the £202 men-
tioned in the petition should not be paid to the
petitioners, the rule to be published once in the
Government Gazette and in a Port Elizabeth news-
paper.
BEGIKA V. MEIBING.
Criminal procedure— Theft by embezzle-
ment — Case remitted — Irregularity — Pri-
soner not served with " fresh summons " —
Refusal of prisoner to plead— Conviction —
Sentence — Appeal.
Mr. Schreiner for the appellant ; Mr. Giddy for
the Crown.
This was a motion for review, under the follow-
ing circumstances : Appellant, Ryk Meiring, was
oharged before the Resident Magistrate of Prieska
with the crime of embezzlement^ in that he was
alleged to have wrongfully converted to his own
use the sum of £22 6s. 5d., belonging to the
brothers Snyxnan, and collected by him on their
behalf. The case was sent to the Attorney-
General and remitted, appellant was found
guilty and sentenced to three months' imprison-
ment, and ordered to be struck off the roll of
agents practising before the Courts of Resident
Magistrates. The preparatory examination was
conducted in due form, but when appellant was
brought up when the case was remitted he was
not served with a summons. The point taken for
review was as to whether a magistrate was not
bound to issue a summons before proceeding to
try a remitted case. Appellant refused to plead
when called upon to do to on account of the
irregularity in the proceedings.
Mr. Schreiner quoted " Regina v. Bamberger,"
1 Juta, 146, and " Regina v Cooper," Buohanan
1879, 162 and contended that the oonviotion
should be quashed on the grounds of irregularity
in the proceedings.
Mr. Giddy contended that the irregularity, if
any, was insufficient to prejudice the appellant.
The original warrant still held good, and all that
was necessary to require the presence of the
accused when the remitted case was heard was
that some legal notice should be given him. Such
a notice had, as a fact, been sent to the appellant,
who was formally told to attend before the
Magistrate and stand his trial upon the oharge.
The exact procedure followed for many years had
been observed in this case, and he was unable to
find, from the records in the Attorney-General's
office, that a fresh summons had been issued in any
remitted case for years and years.
The Chief Justice, in giving judgment, said
that the only question in the case was as to
whether there was such a gross irregularity as to
warrant the Court in quashing the whole pro-
ceedings. In the present care a notice was
undoubtedly served upon the prisoner, to the
effect that as the Attorney-General had with-
drawn his indiotment in the case, and remitted
it for summary trial, appellant was required to
attend before the Magistrate, with his witnesses, to
stand his trial on the charge of theft by embezzle-
ment. He thought the Court would be carrying
technicalities to an extreme if it held that that
was not equivalent to due and proper notice.
Strictly speaking the form was not in all respects
observed, but to all intents and purposes the notice
had the effect of warning the prisoner that he was
to appear and stand his trial. The notice was duly
stamped and served, and the prisoner did in fact
apoear in court. In his opinion, therefore, there
226
was no such gross irregularity as to justify the
Court in quashing the whole of the proceedings.
The appeal must be dismissed with oobts.
Mr. Justice Bucharan concurred.
Attorney for the Crown, Messrs. Beid & Nep-
hew ; Attorney for the Appellant, Gus Trollip]
DAHL V. VAN DEB MERWE.
Mr. Schreiner for the appellant j Mr. Graham for
respondent.
This was an appeal from a decision of the
Resident Magistrate of Wynberg, in regard to an
action in which plaintiff claimed £14 8s. from the
defendant for damage sustained to a horse and
harness alleged to be due to the defendant's
negligence.
The appeal was dismissed with costs.
[Appellant's Att rney, D. Tennant, jr.; Res-
pondent's Attorney, J. Hamilton- Walker.
SUPREME COURT.
WEDNESDAY, AUGUST 26.
[Before the Chief Justice (Sir J. H. DE
VlLLlERS, E.C.M.G.) and Mr. Justice
Buchanan.
JANSEN V. CONBADIE.
Trespass — Action for damages — Declaration
of rights — Prescription — Land Beacons
Act No. 7 of 1866, sec. 47 (a) (b).
Sir T. Upington, Q.C., and Mr. Schreiner
appeared for the plaintiff, and Mr. Searle and
Mr. Molteno for the defendant.
This was an action instituted by Mr. Zirk
Bernardus Jansen, jun., against Mr. Gideon David
Conradie for a declaration of rights and for £100
damages, alleged to have been sustained during
the years 1889, 1890, and 1891 by the unlawful
trespass of the defendant on the plaintiff's land.
The parties to Ihe suit are farmers living in the
division of Philip's Town, and are the adjoining
owners of the farms Olivenfontein and Oosthuis-
fontein, the former belonging to the plaintiff and
the latter to the defendant. The portion of the
farm Olivenfontein, upon which the trespass was
alleged to have been committed, was claimed by
both parties, and the defendant claimed in
reconvention the sum of £100 damages for
the alleged unlawful trespass of the plain-
tiff during the above-mentioned years. The
plaintiff's property was transferred in 1889,
according to a diagram annexed to the original
quit-rent leaee of 1882. Annexed to the declara-
tion were several diagrams, and it was contended
for the plaintiff that his boundaries included
certain beacons, which the defendant denied.
Plaintiff claimed a declaration of boundaries.
Defendant pleaded that in 1884 an agreement in
which the present boundaries of the farms were
arrived at was signed by Booysen, the then
proprietor of Olivenfontein, and Venter, who at
that time owned Oosthuisfontein, and that aa
defendant and bis predecessor in title had enjoyed
uninterrupted possession of the property for over
thirty years, it was his by virtue of prescription.
Defendant also claimed a declaration of boundaries.
Plaintiff, iu reply to defendant's plea, stated that
he never at any time recognised the agreement
between Venter and Booysen as binding on him,
that he at all times protested against it, and that
it was never registered as required by law.
In examination by Sir T. Upington, plaintiff
deposed that when he came into possession of the
property he informed defendant that he refused
to recognise the boundaries as they were alleged to
exist by defendant. He had approached Mr.
Conradie with a view to a friendly settlement, but
defendant replied that he owned £1,500 and hia
house, and would not give up the land in dispute.
On one occasion Conradie instituted proceedings
against witness under the Land Beacons Act for
trespassing on the disputed land, but the Solicitor-
General refused to prosecute and he was acquitted.
At another time he was charged £6 10s. 4d. pound-
age fees for his cattle found on the laud and
impounded. He paid the money but recorded his
protest on the receipt.
Cross-examined by Mr. Searle : It was not true
that he instituted action on account of the criminal
proceedings set in motion by Conradie under the
Land Beacons Act. He had consulted his lawyer
a long while before that.
Mr. Wilford B. Murray, Government land sur-
veyor, stated that at the request of the plaintiff he
surveyed the farms in February last. He made
an explanatory plan, in whioh he noted all the
beacons. He compared Conradie's diagrams with
those of Jansen, and found them to correspond.
By a diagram made in 1824 the beacons of plain-
tiff's farm were shown by means of natural indi-
cations. The topography of the land supported
the line as drawn by witness. He had recom-
mended the parties to proceed to arbitration in
settlement of the dispute.
Mr. C. W. Duploy said he had known plaintiffs
farm since 1868. Afterwards he bought the farm,
whioh, when he had it, had not the beacons now
claimed by Conradie. When he had the farm he
grazed right up to the line claimed by Jansen. In
his time no mention was made to him of an agree-
ment between Booysen and Venter.
227
Farther evidence was given for the plaintiff re-
specting the position of the beacons by Mr. H. Q.
▼an der Merwe, Mr. Petrus Evert* on, Mr. John
Smith, Mr. John Hendrik Badenhorst, Mr.
Johannes Nande, Mr. Hermanus Carl du Prees,
and Mr. Jan Louis Venter.
For the defence, Mr. Searle called
Mr. Gideon D. Conradie, the defendant, who
said he bought his farm Oosthuisfontein in 1888
from Mr. And ties Venter, who then pointed out
the boundaries of the farm. At that time Ohven-
fontein was let out on hire ; the owner did not
live there. He had heard some talk that the first
dispute about the beacons arose during Duploy's
tenancy of Olivenfontein, and the dispute was con-
tinued when Jansen entered into possession. The
land within the line of beacons claimed by him had
always belonged to Oosthuisfontein, and been used
for stock-grazing for many years past. He had
seen in Jansen's possession a copy of the agree-
ment between Booysen and Venter, the former
owners of the farms, in which the beacons were
fixed as witness claimed they should be.
27th and 28th AUGUST.
Sir T. Upington, Q.C., and Mr. Sohreiner
appeared for the plaintiff, and Mr. Searle and Mr.
Molteno for the defendant.
The hearing of this oase was resumed.
Sir T. Upington addressed the Court, contend-
ing that the other side had to a certain extent
abandoned its position. In his opinion, and he
considered he was borne out by several witnesses,
the line shown on Murray's plan was the correct
one, and should be so awarded by the Court.
Mr. Searle, for the defendant, said there was a
startling discrepancy in plaintiff's diagram : instead
of a straight line running between Olivenfontein
and Oosthuisfontein there was an angle tend-
ing ontward, but no suoh discrepancy appeared
on his client's diagram. He thought he had
satisfactorily shown the Court that the plaintiffs
witnesses did not know so much about the ground
in dispute as those of the defendant. In respect
to continuous occupation, he said he had offered
much stronger evidence than the isolated asser-
tions deposed to by the plaintiff's witnesses.
Messrs. W. B. Murray and H. G. van der
Merwe havirg been re-examined,
The Chief Justice said the matter in dispute
between the parties was whether beacon C or beacon
B, on the plan of Surveyor Murray was the
true boundary beacon between Olivenfontein and
Oosthuisfontein, belonging to the plaintiff and
defendant respectively. To decide this question,
he thought the Court must be to a great extent
guided by the rules laid down by the Legislature
for the guidance of the Land Commissioners ap-
pointed under the Land Beacons Act. The Ceurt
had more than once intimated that these rules
really embodied the laws of the country in regard
to the decision of boundary disputes. Sub-
sections a and 6 of section 47 of the
Land Beacons Act dealt especially with
these matters. If the Court relied on the
diagram put in in the present case, the discrepancy
was hopeless, not greater on the side of the
plaintiff than on the side of the defendant. If
they took the tracing from a certain point L, on to
K, then undoubtedly the figures rather corre-
sponded with the claim on behalf of the defend-
ant ; but if, on the other hand, B was taken as
the starting point, then the figures would rather
more correspond with the plaintiff's contention.
The first question was, should they start from the
point B or not ? He thought, on the whole, that
there was sufficient evidence that B should be
taken as the starting point. He quite bore in
mind the contention of Mr. Searle that red
B should be taken, and in one sense he
was satisfied that red B was erected before black
B. Some of the witnesses, however, said that red
B was only erected temporarily, and when Von
Abo came to make his final survey, black B was
fixed as the boundary beacon between Oosthuisfon-
tein, Olivenfontein, and Modderfontein. An old
witness, Mr. Van der Merwe, had related to the
Court what had taken place when the survey was
made by Rawstorne. and stated, among other things,
that a peg made of olive-wood was driven into
the ground, and sure enough a peg of that descrip-
tion of wood was found on the spot indicated.
His only doubt was whether a peg *f that
description would last from 1824 till 1861, but he
had heard that olive wood lasts a very long time
indeed, being one of the hardest woods to be found
in the Colony ; therefore it was quite possible that
a peg like this would resist the influence of the
climate for thirty-seven yearn, especially as it had
net been disturbed in any way. He thought they
might fairly start with B as a corner beacon, as
by doing so there was less discrepancy between the
angles of the three farms. Having fixed upon B,
he considered that if they applied the tracings to
the diagrams, C might be taken as another
corner beacon. In regard to C, old Mr.
Van der Merwe swore that he saw the letter "B"
chipped on a rock, and he also said that his father
told him that this was meant to indicate
a beacon. If Mr. Van der Merwe was to be
believed he thought there was no doubt whatever
that Von Abo intended the point C to be the
beacon to indicate the boundary between Oosthuis-
fontein and Olivenfontein. Ho actual beacon was
found there, but if the letter u B " was ohippcd on
the rock then there would be no necessity for
erecting a beacon at that particular spot. Mr.
228
Searle had argued that a beacon should
have been erected for the guidance of
shepherds and others who could not read,
bnt he understood the rock, or krantz, was a very
prominent foint, and therefore there was no
necessity for erecting a beacon on that spot. Now,
if Yon Abo did intend point B to be a corner
beacon, then at all events they had the nearest
approach to carrying ont the sub-sections of
section 47 of the Land Beacons Aot. The Court
had no evidence before it to prove that Von Abo
did point ont the exact spot, but there was the
evidence of Dn Preez and others as to what they
saw. He was satined, therefore, that these
were the original beacons. They could
not succeed in setting aside these
old beacons unUtfs he could show that they had
been interfered with within a period of thirty
years. No doubt strong evidenoe bad been given
on behalf of the defendant as to actual occupation,
but there was also strong evidence given on that
point in another way. One Naude* stated that he
had been instructed by old Du Preez to place the
Modderfontein beacon in a line between B and C,
and that would be exercising the right of owner-
ship. He was satisfied that G ought to
be adopted as one of the beacons. There
was only one other question whioh gave
him some difficulty, and that was whether
the line should be continued from G to
K, or whether the line should not be taken from
C to A, and thence to K. That would perhaps be
the most equitable course, but he saw nothing in
the evidence to warrant such a course. Therefore,
on the whole, he had come to the conclusion that
they should adopt the beacons olaimed by the
plaintiff, viz., from B to and from C to K.
Judgment was therefore to the effect that the line
and proper boundary between Olivenfontein and
Oosthuisfontein was the line K to C and C to B
(blaoR), according to the diagram of Surveyor
Murray. Judgment would be given for plaintiff
with costs.
Mr. Justice Buchanan concurred.
[Plaintiffs Attorney, Gus Trollip; Defendant's
Attorneys, Messrs. van Zyl <fe Buisslnne.]
SUPREME COURT-
thursday, AUGUST 27.
[ Before the Ghief Justice (Sir J. H. DE VlLLIKRfl,
K.C.M.G.) and Mr. Justice BUCHANAN.]
PROVISIONAL ROLL.
BAARTMAN V. VAN NIEKBBK.
On the motion of Mr. Watermeyer, the final
adjudication of defendant's estate was ordered.
STURK AND CO. V. MOO DIB.
On the application of Mr. Molteno, provisional
sentence was granted on three promissory notes for
£170 12s. 6d.
REHABILITATIONS.
On motion from the Bar,ithe rehabilitation of the
following insolvents wae granted : Willem Died crick
Weeber and Oarl Willem Mega.
OBNBRAL MOTIONS.
WARD V. GERALD <fe CO.
Mr. Shiel moved to make absolute the rule nut
admitting the applicant to sue in forma pauperis in
an action for damages for breach of contract.
The Court made the rule absolute, and appointed
Mr. Shiel counsel and Mr. David Tennant, Jan.,
attorney.
PETITION OF BESSIE PARTRIDGE.
On the application of Mr. Graham, the Court
granted a rule nut calling upon applicant's husband
to show cause why she should not be permitted to
sue him in forma pauperis in an action for divorce.
IMEOTH V. LIQUIDATORS OF THE CAPE OF
GOOD HOPE BANK.
Mr. Searle for plaintiff ; Mr. Juta for respondents.
Mr. Searle said that this application was made by
Imroth for an order setting aside a certain attach-
ment, granted on the 6th August at the instance of
the respondents, of the interest of one Lawrence
under a certain agreement made between Ward
and Weasels in connection with the Weasel ton
Mine, and also under an agreement made between
Lawrence and Ward. The Court would remember
that in the course of the trial Lawrence gave
evidence in respect to money advanoed to Ward.
On tLe 8th February last, Lawrence disposed of
229
hii share to Imroth for the sum of £5,000 ; the
Utter paying down £2,500 in cash, and the other
half being handed over to Messrs. Haarhoff & Hull,
who were the trustees of the money which was
to be handed over to Lawrence when he had
given his evidence in the case. As seon as the
required evidence was given the £2,500 was paid
to Lawrence. On the 24th and 29th June the
cession was made formal and complete by the
execution of certain documents.
Mr. Searle contended that Lawrence had
actually parted with all right, title, and interest
in his share before the matter came into court,
and that he had actually received the money for
his share, there had been a bona Jide cession to
Imroth who had no notice of mala Jidet on the
part of Lawrence ; and consequently there was
nothing for the bank to attach.
Mr. Jut* was heard for the respondents.
The Chief Justice said that in the opinion of
the Court there had been an out-and-out oession
by Lawrence to Imroth, consequently there was
nothing to attach, and therefore the order must
be discharged, respondents to pay the costs.
Mr. Justice Buchanan concurred.
IH THE INSOLVENT ESTATE OP JOSEPH GRADY.
Insolvency — Ordinance No. 6 of 1843, sec.
49 — Written permission given insolvent
to trade in his own name and for his own
benefit — Property acquired subsequent to
surrender and before filing liquidation
account — Fire Policy — Cession — Warner's
Assignees v. Warner's Trustee (4 Juta,
227) commented upon and distinguished.
Mr. Schreiner appeared for the applicant (the
trustee) ; Sir T. U ping ton, Q.C., for the
respondent.
This was an application to make absolute the rule
nut interdicting the payment to the insolvent by
the South British Insurance Company of a claim
under a fire policy, pending the filing by the trustee
of an account in his estate. The application
raised an important and interesting point, viz., as
to the effect of written permission given by a
trustee to an insolvent to trade in his own name
and for his own benefit.
The insolvent, on the strength of the permission
given him to trade in his own name, borrowed
certain moneys from one Kossoth, and again
embarked in business. As a security for the
repayment of his loan, the insolvent ceded to
Kossoth his stock-in-trade and other effects, and
also a policy of fire insurance effected on his
2e
stock. Some time after this cession a fire occurred
on insolvent's premises, in respect of which he
became entitled to the sum of £80 under his
policy. This amount was now claimed by the
trustee as against the insolvent and Kossoth.
Sir T. Upington, Q.C., in applying for discharge
of the rule, referred to the case of "Warner's
Assignees v. Warner's Trustees " (4 Juta, 227), and
remarked that the present case was clearly
distinguishable from Warner's case, in whioh
no written permission to trade had
been given. In the present case, not
only had written permission been given,
but it was expressly stated that the insol-
vent could trade for his own benefit. If the trustee
was held entitled to the money in this oase, on the
same principle creditors might claim the daily
profits made by any insolvent to whom permission
had been given to trade in bis own name. The
trustee was estopped by his own act. The rule
should be discharged.
Mr. Schreiner : The effect of Warner's case has
been misjudged. By sections 48 and 49 the in-
solvent's estate and rights vest absolutely in his
trustee, and the law equally applies where per-
mission to trade has been given in writing or not.
The written consent referred to in section 71
merely protects the insolvent from criminal con-
sequences. The doctrine of estoppel does not
apply. There has been no contract inasmuch as
there has been no consideration.
The Chief Justice referred to " Malan and Van
der Merwe v. Seoretan, Boon & Co." (Foord, 94).
Counsel referred to the 127th section, and con-
tended that the law was clear, and that the rule
should be made absolute.
The Chief Justice, in giving judgment, said : In
the case of "Warner's Assignees v. Warner's
Trustee " I am reported to have said : " It is
needless to inquire what the relative rights of the
parties would have been if such an authority in
writing had been given." In the present case the
question whioh was then left undecided must be
now decided, viz., whether the trustee having
himself given permission to trade in writing is
now entitled to recover moneys earned by the
insolvent by virtue of this very permission to
trade. The 49th section of the Insolvent Ordi-
nance, after treating of the trustee and of the
incapacity of the insolvent, goes on to say : " And
no such insolvent shall be deemed or taken to have
any power to bind any such last-mentioned person
or the insolvent estate in him vested by any
sort or description of dealing, centraot, or trans-
action whatsoever, unless the same shall have been
entered into by virtue of an authority te that
effect from such person in writing." Now this
dearly means that he shall be deemed to have the
power to bind such last-mentioned person if the
authority is in writing. It follows as a necessary
230
consequence that it was the intention of the Legis-
lature that the trustee shall be bound if he has
given the authority in writing. In the present
ease, by virtue of such permission the insolvent has
acquired and disposed of certain property, and has
entered into certain arrangements with Kossoth.
It would be contrary to every principle of law and
justice that the trustee should now be entitled to
claim this property. It is no doubt true
that our law does not recognise the doctrine
of estoppel to the extent that the English law
does, but our law does recognise undertakings of
this nature, although no consideration was given
for such undertaking — and it may be set up as a
defence, and therefore the trustee is not entitled
to claim the property. It is not necessary to
decide what the rights of creditors may be —
whether special creditors have rights under
section 127. This is not a oase of special creditors
suing, but a oase in which the trustee alone sues,
so that our decision oomes to .this, that the trustee
having given this permission is prevented from
recovering this money, and the rule must be dis-
charged with costs.
Mr. Justice Buchanan : I concur, and I put it on
this ground, that the trustee having given a
written authority to trade, the provisions of the
49th section bind the trustee to contracts entered
into with third persons. The trustee must, after
oonsent had been given, recognise the arrange-
ments made by the insolvent with third persons.
As to whether creditors may sue, that is a question
whioh does not arise here.
The Chief Justioe : I only wish to add that it is
quite clear, from the general tenor of my judgment
in Warner's case, that it was only because of the
express provisions of the Ordinance requiring the
permission to trade to be in writing that I
consented to the judgment.
PETITION OF JOSEPH W. BOSS.
Mr. Giddy applied for a rule nut oalling upon
the wife to show cause why the petitioner should
not be admitted to sue her in forma pauperis in an
action for divorce by reason of her adultery. — The
rule was granted.
SUPREME COURT.
FRIDAY, AUGUST 28.
[Before the Chief Justioe (Sir J. H. DE VlD-
LIKRS, K.C.M.G.) and Mr. Justice BUCH-
ANAN.]
VAN ZTL V. DE BEER.
Transfer — Action for — Written agreement
of sale and purchase— Cancellation.
Mr. Searle and Mr. Tredgold appeared for the
plaintiff, and Mr. Sohreiner for the defendant.
This was an action for transfer. The parties to
the suit both reside in the district of Piquetberg.
The declaration alleged that in March last the
defendant, in her capacity as executrix testa-
mentary under the joint will of her late husband
and herself, undertook to sell, and the plaintiff to
buy, for the sum of £850, the farm Matroos-
fontein, situated in the district of Piquetberg, and
at present occupied by the defendant. The agree-
ment to purchase w»s in writing, a copy of which
was attached to the declaration.
The defendant in her plea admitted having
signed the agreement referred to in the declara-
tion, but alleged that it had been cancelled on the
20th Mareh by mutual consent. Upon these facte
issue was joined.
Mrs. M. M. S. de Beer, the defendant, examined
by Mr. Sohreiner, stated that she knew the plain-
tiff Van Zyl, who was a good friend of hers until
lately. Her late husband died in 1887 ; they had
been married in community of property. Plaintiff
and herself became engaged early in March last. On
the 6th of the same month she signed a document
agreeing to a sale of the farm for £850 to the
plaintiff. After she had signed the document, and
given it to the plaintiff, he promised to return on
the following day to discuss the matter
more fully. Her late husband and herself made
a mutual will in 1868, which was registered in the
Master's Office. In 1886 another will was made,
by whioh the farm Matroosfontein, the subject of
the present action, was bequeathed to her children.
Plaintiff returned on the 20th March with Mr.
Peterson, and said that he had come to put an end
to the Bale. Witness said that she was very glad,
as her children were dissatisfied. Plaintiff said he
had not the agreement with him, but that he
would bring it back some other time. One of
witness's sons was present during the conversa-
tion. Plaintiff never brought back the contract of
sale, but on the 21st April he brought another
document, written in lead-pencil, and asked
witness to write it in ink; and sign it. Witness
23i
'-L~A.
refused, as she thought the sale had been
cancelled. Plaintiff came again in May, and pro-
posed that witness should sell the farm, as he said
he had found that she could do so. He also said
that they could marry in community of property,
and make a will leaving their property to their
children. She refused to accede to this request.
Cross-examined by Mr. Searle : She told Van
Zyl that there was another will in existence. The
farm Matroosfontein was valued at £500; £850
was not a high price for the farm, and she would
not have accepted that sum only for the fact that
she and Van Zyl were engaged at the time the
offer was made. There was a bond of £700 on the
farm. She claimed the right to sell the whole farm.
Michiel Johannes de Beer deposed that plaintiff
told him that he intended to cancel the sale, as he
heard that the place was bequeathed to his (wit-
ness) brother Conrad.
Guillanme G. Prideaux deposed to having seen
plaintiff at Matroosfontein, and having heard that
he meant to throw the sale over.
Pieter Adriaan van Zyl deposed that he knew
Mrs. De Beer, and was once on very good terms
with her. On the 7th March he visited her and
proposed to purchase Matroosfontein, and on the
12th the " koop brief " was signed by both parties
to the contract. He then went to Boeibaai to see
Mr. Stephan, and arranged for the purchase money
of the farm. On the 20th March he went to
Matroosfontein, and saw the defendant, who asked
him if he had got the money, and he said yes. She
told him he need not have troubled himself, as
the farm was bequeathed to her sons. He obtained
a copy of the late Mr. De Beer's will. He saw
the widow again, and she gave him a letter to
show Stephan that the farm was bequeathed
to her children. He made a declaration of
purchase in May, after he had seen a
copy of the will, and he told her that
it would be necessary for her now to go before a
justice of the peace and make a declaration of
seller. He was always in a position to tender the
purchase money. When he made the contract he
knew about the litigation over the water at
Matroosfontein. He was engaged to the widow,
but when he brought her a copy of her late hus-
band's will the engagement was broken off by the
lady. He knew nothing about a second will, by
which the farm was bequeathed to the children.
He had been held liable by Stephan for interest
on the borrowed money.
Cross-examined: He was not a farmer, but
formerly carried on business at Clanwilliam as a
shopkeeper. He had known the widow since
January last, and became engaged to her when the
matter of purchasing the sale came up. He never
•poke to Michiel de Beer on the subject of the
purchase of the farm, neither did he speak with
Peterson, of Piquetberg-road.
Edward J. Cordey, manager for Stephan at Berg
River, deposed that the money had always been
ready for plaintiff, whenever he felt inclined to
purchase the farm.
Johannes G. van Zyl deposed that on the 25th
March he went to Malmesbury and saw Mr. Van
Noorden, according to his father's instructions.
Counsel having addressed the Court,
The Chief Justice said the plaintiff's case had
been hopeless from the very beginning. The
defendant was the executrix of the estate of her
late husband, and in that estate there was a farm.
The plaintiff got into her good graoes and then
induced her to sell the farm. It was unnecessary
to inquire whether the price offered was a good
one or not. He must say at once that were a sale
effected under such circumstances the Court in
any case would require very strong evidence of
cancellation, but in this case there was complete
evidence of cancellation. In the letter which
the plaintiff asked the defendant to write
for presentation to Stephan, she was requested to
say that the farm was bequeathed to her children,
and that therefore it would be unnecessary for
him to take any further steps in obtaining the
purchase money. This letter was wholly consistent
with the fact that there had been a previous can-
cellation. Such a letter could not have been
written unless it had been clearly understood be-
tween the parties that there was such a cancella-
tion. Judgment must be given for defendant
with costs.
Mr. Justice Buchanan ooncurred.
[Plaintiff's Attorneys, Messrs. Fairbridge <fc
Arderne ; Defendant's Attorney, C. C.de Villiers.]
SUPREME COURT
MONDAY, AUGUST 31.
[Before the Chief Justice (Sir J. H. DE VlLLIERB,
K.C.M.G.) and Mr. Justice Buchanan.]
RBOINA V. ZWABTLANDZANA
Mr. Giddy remarked that in this case the
prisoner was indicted for assault with intent to do
grievous bodily harm by striking his wife with a
stone. At the hearing of the case the prisoner
pleaded guilty of assault, but; not with the stone
produced. The case was remitted by the Attorney-
General, under Act 12 of 1860, as amended by Act
48 of 1886, and the prisoner was sentenced by the
Magistrate to twelve months' imprisonment with
hard labour. On the case coming on review before
the Chief Justice, his lordship expressed an
232
opinion that the plea of the prisoner was not really
one of guilty of assault with intent. The Attorney-
General consented to a withdrawal of the original
lemit, and the Court now agreed that all the pro-
ceedings subsequent to the remit should be
quashed. The Attorney -General subsequently re-
mitted the case, under Act 43 of 1885, for assault
with intent.
PROVISIONAL ROLL.
QROENEWALD'S EXECUTRIX V. BEN EKE.
On the metion of Mr. Schreiner, provisional
sentence was granted on a mortgage bond for £600,
and the property declared executable.
BOND V. BOND.
On the application of Mr. Searle, the final
adjudication of defendant's estate was ordered.
VAN DER BYL AND CO. V. ZUIDMEEB.
On the motion of Mr. Watermeyer, provisional
sentence was granted for £59 6s. 6d., due on three
promissory notes. The claim for commission was
disallowed.
REHABILITATION.
On motion from the Bar, the rehabilitation of
the following insolvent was granted: Jan
Abraham du Plessis.
GENERAL MOTIONS.
IN THE ESTATE OF THE LATE JACOBUS A.
BURGER.
Mr. Schreiner moved for an order making
absolutejthe rule nisi for the cancellation in the
Deeds Registry of certain mortgage bond for
£3,000, passed by Barend J. J. Burger en the 16th
May, 1878, in favour of the said Jacobus A. Bur-
ger, since deceased.
The order was granted.
PETITION OP WILLIAM J. CROOKS.
Mr. Shiel moved for an order making abso-
lute the rule nisi for the registration in the name
of the estate of the lnte John Crooks of certain
two pieces of land situated in Walmer and Port
Elizabeth, now registered as owned by Francis
and W. Lloyd.
The order was granted.
PARTRIDGE V. PARTRIDGE.
V r. Graham moved for an order making abso-
lute the rule nisi admitting the applicant to
sue in forma pauperis in an action for divorce
against the respondent by reason of his adultery.
The order was granted.
EATON V. EATON.
Mr. Tredgold moved for the removal of the suit
instituted against she respondent by his wife, for
restitution of conjugal rights, for trial at the next
Circuit Court to be held at Queen's Town.
The order was granted.
PETERS Y. PETERS.
Mr. Jones made application for an order making
absolute the rule nwt for the dissolution of the
marriage subsisting between the parties by reason
of the respondent's failure to receive the appli-
cant, or return to her, as ordered by the Court
The order was p ranted.
TRUTER V. TRUTER.
Mr. Watermeyer applied for an order making
absolute the rule nisi admitting the applicant
to sue in forma pauperis in an action for
restitution of conjugal rights, by reason of her
husband's malicious desertion.
The order was granted.
WHEELER V. WHEBLER.
Mr. Molteno applied for an order making absolute
the rule nisi for the dissolution of the marriage sub-
sisting between the parties by reason of the re-
spondent's failure to comply with the decree for
restitution of conjugal rights.
The respondent who appeared in person, said
that her husband had misconducted himself, and
she claimed the expenses of her recent confine-
ment. She declined also to go to Simon's Bay,
where her husband worked, because the climate
did not agree with her.
The Chief Justice said if the child was the
husband's, of ceurse he must contribute towards
its support. As the respondent had made certain
allegations against her husband, the case must
stand over until Thursday next for further
evidence.
(3rd SEPTEMBER.)
The hearing of this case, upon the application to
make absolute the decree of divorce, was resumed.
Mr. Molteno appeared for the petitioner, the
husband.
253
Petitioner, recalled at the instance of the
Court, denied the wife's allegation that he had mis-
conducted himself with another woman, and
offered to contribute 6s. per month to maintain the
child of which he was alleged to be the father.
The respondent, Mrs. Wheeler, stated that she
had witnesses to prove her husband's misconduct.
Mr. Justice Buchanan: How many children
were there of the marriage ?
Wheeler : Four, my lord ; three are dead.
The Court granted the decree of divorce, defen-
dant to have the custody of the child, and peti-
tioner to pay 58. per month towards its
maintenance until the age of fourteen is reached,
first payment forthwith and payment thereafter
on the first of each month.
IN THE ESTATE OF PBTRUS JACOBUS HUGO.
Mr. Graham applied, on behalf of the executors,
for the appointment by the Court of some disin-
terested person to represent the minor heirs in
regard to the division of the property bequeathed.
He would suggest that Mr. B. R. Syfret be
appointed.
The Chief Justice considered this would be an
unnecessary expense, but the Court would accede
to the suggestion of counsel and appoint Mr.
ttyfret
PETITION OF FREDERICK DYEB.
Mr. Jones applied for an order making absolute
the rule nisi authorising the registration of title in
the Deeds Office at King William's Town, in
petitioner's name, of certain piece of ground,
marked No. 3, in the village of Keiskama Hoek.
The order was granted.
CAPE OF GOOD HOPE BANK (IN LIQUIDATION)
V. VAN LIER'8 EXECUTOBS.
Mr. Schreiner suggested, and it was ordered, that
this matter stand over until the case of Watson's
Executors v. Watson's Heirs came on for hearing.
IN THE ESTATE OF THE LATE HERMINA
M. OVERBEEK.
Mr. Juta moved for an order making absolute
the rule niai for the payment in aid of the
■upport of Albertina Overbeek and her child, the
inheritance devolving upon Gerhard B. Overbeek
ind his wife, the said Albertina Overbeek, as heirs
•6 intettato in the estate. Mr. Juta said that Mr.
Orerbeek's whereabouts was not known, but he
was believed to be in Australia.
The order was granted.
In re CAPE STOCK-FABMINO COMPANY, LIMITED.
Windiog-up Act— -No. 12 of 1868— Com-
pany placed under operation of on appli-
cation of executors of deceased shareholder.
Sir T. Upington, Q.G., moved, on behalf of the
executors of the late Mr. J. B. Bvans, a debenture
and shareholder, that the oompany be placed
under the operations of the Winding-Up Act of
1868, and that an offioial liquidator be appointed
to aot thereunder. Sir T. Upington said that
this was a joint-stock oompany, registered in
England, it had a capital of £100,000, in 100 sLares
of £1,000 each, on which shares £60 had been
paid up. The company now owed £48,000 on
debentures, the greater part of which matured on
the 80th June last. The sum of £11,899 was
owing on current liabilities, and the company was
worked at a loss. The late Mr. John B. Bvans
held debentures to the value of £6,250, which
matured on the 80th June last, and 198 shares, on
which there remained unpaid £60 per share.
There were two other shareholders in the Colony,
who held sixty shares between them. The estate
of the oompany would net realise sufficient to pay
the debentures and current liabilities, and the
paid-up capital of £50,000 would be a total loss to
the shareholders. Under these oiroumstances, it
was just and reasonable that the company should
be wound up ; and he suggested that Mr. G. J.
Brugmann, manager of the Midland Assurance
and Trust Company, should be appointed offioial
liquidator.
The Chief Justice inquired if the company had
a representative in this colony.
Sir T. Upington replied that there was a manager
here, but Messrs. McDonald, Vardy <fc Co., of Port
Elizabeth, really had the management in their
hands. The debentures had been presented and
dishonoured. The security of the Truct Company
would be offered, and more if required.
The Chief Justice said the Court would grant
the application and appoint Mr. Brugmann official
liquidator, notice to be given to the manager of
the company.
In re PORT ELIZABETH TOWN COUNCIL.
Mr. Searle moved for an order making abso-
lute the rule nisi for payment to petitioners of
the purchase price of certain lots of land bought by
W. S. Craik, John Dickson and John Passmore,
but not paid for and subsequently sold in execution
for the rates due thereon, out of the proceeds
lodged in the hands of the Master under the provi-
sions of the Derelict Lands Aot.
The order was granted.
234
PETITION OF JULIA FRANCES BERRY.
Mr. Molteno applied for leave to sue in
forma pauperis in an action against applicant's
husband for restitution of conjugal rights, failing
which for divorce, by reason of his malicious
desertion.
The order was granted.
PETITION OF JOHN BUTLER
Mr. Watermeyer moved for an order making
absolute the rule niti for registration of title in
the name of the petitioner of certain piece of land,
No. 95, Paulet-street, Somerset Bast, now regis-
tered in the name of the insolvent estate of Lloyd
Evans Mesham.
The order was granted.
IN BE THE ESTATE OF THE LATE A. G. H.
TIKDALL.
Mr. Schreiner made application on behalf of the
official liquidators of the Gape of Good Hope Bank
for an order for the liquidation of the estate of
the late A. 6. H. Tindall, of East London, the
estate owing to the bank the sum of £250.
The order was granted.
MABAI8 V. LANGFORD.
Appeal — Costs — Act 5 of 1879, sec. 14.
Mr. Schreiner appeared for the applicant and
Mr. Searle for the respondent.
This was an application for an order requiring
the respondent to provide security for the judg-
ment and costs in the Courts below and costs in
this Court in the appeal set down for hearing this
day.
The faots of the case appear sufficiently from
the reasons of his lordship the Judge-President
of the High Court, which are as follows : " In
this case the plaintiff sued the defendant before
the Resident Magistrate of Kim barley for damages
sustained by reason of his neglecting to send
certain notices to the Civil Commissioner as he was
required to do, in his capacity of poundmaster, by
section 18 of Ordinance 16 of 1847, The defend-
ant excepted to the summons apparently on the
ground that the section in question was repealed
by Act 1 of 1857 ; the exception was sustained by
the Magistrate and the plaintiff appealed. The
Magistrate omitted to furnish the Court with
reasons for his decision, and the respondent de-
clined to avail himself of a suggestion from the
Court that he should instruct counsel to argue the
point of law involved in the appeal. The excep-
tion as based on the Act of 1857 was technically bad,
as this Act is repealed by Act 40 of 1889, but
section 5 of the Act of 1857, on which the re-
spondent appeared to rely, is substantially re-
enacted by section 216 of the later Act. The
Court, however, was of opinion that this section
did not repeal section 18 of the Pound
Ordinance requiring the notices to be sent
to the Civil Commissioner. It merely enacted that
the method of publication should be as directed by
the Divisional Council, anything in section 19 of
the Pound Ordinance notwithstanding ; and the
effect of the two sections taken together seemed to
be that the notices should still be forwarded by
the poundmaster, as directed by the Pound
Ordinance, and should then be published in such
manner as the Divisional Council should direct.
This construction also appeared to be in accord-
ance with the tenor of sections 2 to 4 of the
repealed Act of 1857. The case was therefore
remitted to be heard on the merits, leaving the
plaintiff to prove that he had sustained damage by
reason of the alleged neglect of the defendant.'*
Mr. Schreiner, for the applicant, contended that
the respondent was bound to give security for
costs. Counsel referred to " Hilpert v. The Castle
Packets Co." (6 Juta, 26).
The Court held that the applicant had mistaken
his remedy ; that he should have proceeded under
Act 5 of 1879, section 14, and refused the applica-
tion with costs.
TBUTEB V. TEUTKE.
Mr. Watermeyer appeared for the plaintiff ; the
defendant in default.
This was an action for restitution of conjugal
rights brought by the plaintiff, Mrs. Truter,
against her husband.
Mrs. C. J. Truter, in examination, deposed that
she was plaintiff in this case, and that she was
married on the 19th January, 1874, at Malmesbury.
In June, 188?, her husband deserted her and pro-
ceeded to Cape Town, and thence to Namaqualand.
She had received no support from him since his
desertion. There were five children by the
marriage, one of them being now dead. In 1882
and 1886 she received letters from him in answer
to her appeals for support. There was money
coming to her husband in Malmesbury. He was
addicted to drink before he left her. The eldest
child was now sixteen years of age and helped to
support the family.
The Court granted the order, calling upon
the defendant to show cause why he should
not return to, or receive the plaintiff on or before
the 1st November next, and failing which, before
the first day of next term to show cause why a
decree of divorce should not be granted ; why
plaintiff should not have the custody of the
235
children; why the joint estate should not be
divided ; and why he should not pay the costs of
this action.
[Plaintiff's Attorneys, Messrs. van Zyl &
Buissinne.]
POTOIETER'8 BXECUTOB V. POTGIETER.
Mr. Schreiner appeared for the plaintiff; the
defendant in default.
This was an action for recovery of £49 8s. 8$d.,
due to the estate of the late G. F. Potgieter, as
his share of certain mohair. There was a claim
in reconvention by defendant, nephew of deceased,
for £128, said to be due as his share of oertain
moneys realised by the sale of ostrich feathers for
joint account, and paid by the defendant to the
credit ef the deceased in the Standard Bank. The
defendant, however, did not appear at the trial,
and after proof of notice of trial to his attorneys,
the Court granted judgment for the plaintiff as
prayed with costs, and absolution from the
instance with costs with regard to the defendant's
claim in reconvention.
The Court intimated that the executor would
new be justified in proceeding with the liquidation
of the estate.
[Plaintiff's Attorneys,
Syfret.]
Messrs. Scanlen and
SCHAKOFSCO V. VAN HOOBDEN.
Damages — Action for — Alleged partnership.
Mr. Searle appeared for the plaintiff, and Mr.
Juta for the defendant.
This was an action instituted by Mr. Max
Schakofsco against Mr. B. H. van Noorden for
£500 damages alleged to have been sustained
under the following circumstances, as set forth in
the declaration, from which it appeared that in or
about March, 1891, plaintiff and defendant entered
into a verbal agreement of partnership upon the
following terms and conditions : The defendant
agreed to advance the sum of £2,500 for the pur-
pose of carrying on a business in Cape Town for
the manufacture and sale of tobacco and snuff in
partnership with plaintiff, the said eum to be
expended in the purchase of machinery and other-
wise developing the said business, the defendant
to have control of the financial affairs of the said
business, the plaintiff to superintend the practical
working and management of the same, and to draw
the sum of not more than £15 a month out of the
said business, the said agreement to continue in
force and the said business to be carried on for
three years. Plaintiff also agreed to let defendant
have one-fourth share in the profits of the
eifaxette manufactory at that time carried on by
plaintiff under the name of J. J. Max & Co., and
it was further agreed that defendant should assist
in the supply of tobacco, and should advance
certain sums of money amounting to about
£100 in order to satisfy the liabilities
of plaintiff's firm, J. J. Max & Co. It
was subsequently agreed that plaintiff and
defendant should carry on a cigar manufactory in
Cape Town, and that the profits of the same
should be equally divided between the partners.
Thereafter, on or about April, 1891, the defendant
refused to satisfy the debts of J. J. Max & Co., or
to carry out the other conditions above referred to,
and further took possession of certain assets of the
said business,! to wit, certain cigarettes, tobacco
and cigars, and the balance-sheets and other docu-
ments belonging thereto, and refused and still
refuses to give up the same or to allow plaintiff to
have access thereto, or to render a proper account
of the said assets. The defendant further
repudiated the said agreement, and refused to
carry out any of the terms thereof. By reason of
the said wrongful acts of the defendant, and by
the said breach of contract, plaintiff alleged that
he had sustained damages in the sum of £600,
which he claimed, with costs of suit.
The defendant, in his plea, denied the partner-
ship referred to in the declaration, and repudiated
the alleged agreement. The defendant also
specially pleaded that in February last, the
plaintiff being indebted to him in the sum of
£17 16s. 3d., and being unable to pay it, or to
obtain tobacco for carrying on his business, it was
agreed between the parties that the defendant
should supply the plaintiff with tobacco, and also
advanoe him oertain weekly sums of money ; that
the plaintiff should manufacture cigarettes which
were to be sold by the parties ; that the plaintiff was
to pay in all sums received for cigarettes sold to
the defendant, and that at the expiration of one
month, the period for which this agreement was to
last, after deduction of the money due by the
plaintiff, the price of the tobacco supplied, and the
weekly turns advanced, the defendant was to re-
ceive a sum equal to one-fourth of the profits
arising from the said sales. In pursuance of the
said agreement the defendant supplied tobacco and
advanced moneys, and the plaintiff manufactured
and sold cigarettes and paid to defendant certain
moneys. During the said period the parties agreed
that the defendant should supply the plaintiff with
tobacco for cigars, and that the plaintiff should
return to the defendant the value of the tobacco in
cigars, calculated at 8s. a hundred, any surplus
to belong to the plaintiff, and the defendant did
supply oertain tobaoco, and the plaintiff returned
certain cigars. The plaintiff did not pay all
moneys received by him from the said sales, and
•n the expiration of the said period of a month
the plaintiff neglected and refused to render an
286
account of the moneys so received by him, or to
come to a settlement with defendant in terms of
their asreement and the defendant refused to con-
tinue the said agreement as he was entitled to do.
Wherefore the defendant prayed that plaintiff's
claim might be dismissed with costs. The defen-
dant also claimed in reconvention that the plaintiff
was indebted to him in various sums of money
and for the value of tobacco supplied, aa per an
account attaohed to the plea. Defendant finally
prayed for a statement of account and for judg-
ment for such sums as he might be found entitled
to thereon. Upon these pleadings issue was
jeined.
Max Schakofsco, examined by Mr. Searle, deposed
that he had been in the Colony nearly three years.
He had been with Allen <fc 6 inter in London for
seven years, and therefore was thoroughly ac-
quainted with the manufacture of cigars,
cigarettes, and snuff. Last year he carried on
business in Burg-street with one Curtis, but that
partnership was closed in November last. He
first became acquainted with defendant about
seven months ago, and had certain transactions
with him. Defendant had a snuff and tobacco
manufactory in Loop-street, under the name of De
Jongh. He became indebted to defendant
for tobacco, and passed a promissory note for £17.
Defendant came to him and asked for the money,
and he explained to him that he was short of
money, a6 his traveller, Nathan, had bolted with
some money belonging to him. He asked witness
if he could improve the quality of Colonial
tobacco, and he said yes, but it would require very
expensive machinery. Defendant then said he
had an extensive business in Loop-street, and
would like to get hold of a man who understood
the tobacco trade as a working partner. In reply
to a question, he said that the machinery would
cost between £700 and £800. Defendant then
asked him how much he would require to carry
on a wholesale tobacco business, and he said about
£2,600 or £3,0C0. The Colonial tobacco was good
enough, but wanted machinery to take the nico-
tine out of it. Defendant then asked him if he
had any liabilities, and he said about £100, and he
then agreed to take witness as a partner and meet
these liabilities, which witness was to pay off by
instalments. He was to draw £16 per month for
the first six months, and the agreement was to
endure for three years. The agreement
was not signed, as defendant had to go
off somewhat hurriedly to a sale at Piquet-
berg. Until the machinery arrived, defendant was
to receive half-profits from the cigarette
business. When defendant returned from Piquet-
berg witness asked him about the machinery, but
he gave evasive answers. He put up machinery
for defendant in order to treat Colonial tobacco,
and it turned out a great success, the tobacco being
sold in quarter-pound tins. After that time the
cigarette business was carried on, the defendant
supplying the tobacco. Witness had 200 lb. of
tobacco in bond, but it was cleared by defendant
after the partnership waa entered into. Dawes
and Murray & St. Leger supplied labels and
wrappers, but witness had not defrayed these
accounts. He knew Meeser, who was to have been
employed to travel, on a commission of 10 per
cent for cigarettes, and 6 per cent, for cigars,
tobacco, and snuff. By arrangement with de-
fendant, witness paid the wages of the cigarette
hands on Saturdays, and rendered periodical ac-
counts The rupture in the partnership occurred
on the presentation of a promissory note presented
by the Loan and Mortgage Company in connection
with the clearing of the tobacco out of bond. De-
fendant said he had better go bankrupt, and he
(defendant) said he would go round to the
creditors and try to induce them to accept
2s. 6d. or 6s. in the £. This witness re-
fused to do. He had given defendant a recipe
for the treatment of tobacco, and on his
applying for it, he ordered him out of his office.
Witness had trained several coloured girls to the
business, but when he got into difficulties defen-
dant employed all these girls. He also asked
defendant to let him eee the balance-sheet, but
this he also refused to do. Sinoe he discontinued
the business he had been out of employment. At
the time defendant made the offer of partnership
his business was steadily increasing. When his
goods were attaohed by the messenger of the
Court he calculated the value of the goods at
between £30 and £40. The recipe for the treat-
ment of tobacco was of great value to any manu-
facturer. It waa not true that he had withheld
moneys belonging to defendant, or that he had
refused to render an account.
Cross-examined : Cohen was not present when
the partnership waa entered into. He kept books,
but he had not brought them to the Court. If at
the time of the partnership his creditors had
pressed him he could have paid at least two-thirds
of his liabilities. He could have gone on without
the tobacco in bond, because he purchased small
quantities in town. The business of De Joogh,
he believed, waa a very old-established one He
saw the written agreement, but it was never com-
pleted, not having been stomped. Defendant
was to receive a quarter of the profits on
the cigarette business. He (witness) gave
evidence in a case in which he was sued by
Palmqvist for certain moulds supplied from his shop.
The defence set up was that as Van Noorden had
purchased the moulds he should be held respon-
sible. He looked upon defendant aa the " Co."
in Max 6 Co. He was not a servant of the
defendant, as he never reoeived any wages from
him, but he had received money on account
237
of the partnership. Cohen never introduced
witness to defendant He kept no books, defen-
dant being the financial partner. He received 9
lbs. of tobacco daily from defendant, which turned
oat about 4,600 cigarettes. It was not true that
Cohen had to manipulate the tobacco over again
which he had treated. It was not true that an
arrangement was made to supply cigars at
8s. per 100. The machinery was never sent for,
defendant promising to do so when witness had
relieved himself of his liabilities by compromising
with his creditors, or otherwise geing insolvent.
When his goods were attached for rent he did
not Bet up the partnership as a defence. He
had given defendant an inventory of the stock
and fixtures before the partnership was entered
into. The tobacco for the manufacture of
the cigarettes was purchased on the partnership
account. The damage he bad sustained was that
his cigarette business had been closed, and he
could neither obtain credit nor employment.
Re-examined: After the action brought by
Palmqvist defendant took steps to appeal against
the decision of the Magistrate. The price agreed
upon for the cigars was 16s. per 100, less 6 per
cent. There was no person present when the
partnership agreement was entered into.
F. B. Alloxan, clerk in the Magistrate's Court,
deposed that an appeal was noted by Van Noorden
in the Palmqvist case.
By permission of the Court, Mr. Juta called
I. Cohen, who deposed that he knew both
plaintiff and defendant. He was in the tobaoce
trade, and knowing that defendant wanted a
practical man, he mentioned plaintiff's name to
him. The result was an interview, and an arrange-
ment was come to, at which witness was present.
The arrangement was that defendant was to supply
plaintiff with tobacco at 6s. 3d. per lb. ; that en
Saturdays defendant would send plaintiff between
£3 and £4 for the payment of himself and the
girls ; that the cigarettes when made were to be
sent to defendant's place ; that plaintiff was also to
sell cigarettes, and hand the money over to
defendant ; that defendant was to get one-fourth
ef the profits, after the price of the tobacco and
the wages had been deducted. Defendant said it
would be as well to try this arrangement for a
month. He was employed by plaintiff to make
cigars, and obtained the necessary moulds, &o.,
from Palmqvist. The tobacco treated by plaintiff
was unfit for consumption. He regarded himself
as being employed by plaintiff, as he paid him.
Cross-examined : He got the leaf tobacco for
the cigars from Stark k Co. Cigars could be
produced for 8s. per 100. He knew nothing about
the recipe given for the snuff. Plaintiff was going
to sell the smoking mixture, but he did not know
what arrangements had been made between the
parties. The labels obtained from Murray 6 St.
2i
Leger were sent to plaintiff's place in Burg-street.
As a matter of fact no tobacco was prepared, with
the exception of one tin, which had been manipu-
lated by plaintiff.
(SEPTEMBER 4th.)
The hearing of this case was resumed, Mr.
Searle appearing for the plaintiff, and Mr. Juta
for the defendant.
Mrs. Ada Maber, an employe' at the Burg-street
shop of Max A Co., sai d there was some smoking
mixture in tins at the store— seven or eight tins
were exposed in the window. She was present at
an interview between Meser and the plaintiff and
defendant. On that occasion Meser was handed
some tobacco, cigars, and oigarettes, and Van
Noorden said he would give him samples of snuff
next day. She remembered samples of tobacco
coming from OudtBhoorn. They were sent for by
Van Noorden and Max. The tobacco which was
sold was prepared at Van Noorden's, Van Noorden
paid the wages of the girls. She understood she
was working for Max and Van Noorden together.
By Mr. Juta : The tins of tobacco were sold.
They always called Shakofsco " Max," under
which name he traded.
Mr. H. Dawes, photographic engraver, deposed
that he printed labels for oigarettes, and made
designs for the yellow labels for tobacco in boxes
He printed and supplied 20,000 labels for cigar-
ettes. He presented the account for the labels to
Van Noorden, and he paid by cheque.
By Mr. Juta : He applied twice for the money.
It was not true that on the first oocasion Van
Noorden refused to pay the money. He simply
asked witness to call again.
Mr. Johannes Meser stated that he remembered
meeting Max and Van Noorden at the Burg-
street store, in March last. Max made certain
arrangements with witness, which Van Noorden
heard and approved. He had tried the " On
Guard " mixture, and found it very good.
By Mr. Juta : Van Noorden never said that
Max would engage witness as traveller.
By the Court : He understood he was dealing
with Max and Van Noorden. The two together
engaged him provisionally.
Mr. John Hands gave evidence that in March he
was at the Burg-street store, and Max asked Van
Noorden if he could give witness credit as usual,
and Van Noorden said yes. Max introduced Van
Noorden to witness as his partner.
By Mr. Juta : That was the only occasion when
he met Van Noorden. It was about March 10.
Mr. Adelph Birkenberg, who created some
laughter by refusing to give evidence until he had
received his " witness money," and was only
pacified when counsel promised that the money
238
should be paid, deposed thai for nine months he
worked for Van Noorden at his store in Loop-
street One day Van Noorden brought Max np to
the store, and told witness to take instructions
from Max with regard to the steaming of tobacco.
The steaming was done to take the smel oat of the
Boer tobaoco.
By Mr. Juta : Max only came to steam tobaooo
onoe.
Mr. J. G. Newlands, accountant, put in certain
accounts framed on the basis of Max's books and
upon his personal information, and said that
according to those sources there were eight items
in which the respective accounts submitted by
Max and Van Noorden differed.
Mr. B. H. van Noorden, the defendant, exa-
mined by Mr. Juta, gave evidence that he traded
as De Jongh, in whioh capacity he manufactured
snuff, for the reoipe of whioh he paid £2,000. He
was introduced to Bhakofsco (Max) by Cohen. He
never agreed to go into partnership with Max. He
swore positively that he knew nothing of Max
except that he owed witness meney. So far from
agreeing to take Max into partnership and pay
£2,600, he would have required that sum as an
inducement to take anyone into partnership. As
to the cigarette-making, he simply advanced plain-
tiff money to carry on the business in order that
he might get his own money back
again. He never agreed to take over Max's
plant, and did net know what plant
he had. He enly paid Dawes at Max's
request, and on the dear understanding that he
was to be recouped. Max told him that Meser
was employed by White, Muller <fcCc, and witness
then cautioned Max against interfering with other
people's servants. The first time witness heard
anything about a partnership was when he refused
to supply Bhakofsco with more tobaooo. On that
occasion Shakof soo was very violent, and told wit-
ness he would drag him into the Insolvency Court.
The reason why he refused further supplies was
that Bhakofsco did not render him any accounts.
He had never received proper accounts from
bhakofsco. It was not true he ever agreed to pay
Bhakof sco's debts. He was asked to do so but
refused point blank. He was doing a good business
in the snuff trade, and never in any way had in
view a partnership with Bhakofsco. He never
told Bhakofsco to get labels printed ; as a tobacco
manufacturer he had his own label.
By Mr. Bearle: His business was in snuff,
tobaooo, pipes, Ac. He could not say if he was
lling much cut tobaoco in tins at the beginning
of the present year, but he had sold out tobaooo
for years, and had machinery for that purpose. He
did not think he had large orders for out tobacco
at the commencement of this year. Bhakofsco
never mentioned the " On Guard " label to him.
Bhakofsco told him the " On Guard " label was for
cigarettes. Meser's evidence, that witness asked
him to sell snuff, was a fabrication. Bhakofsco
never gave witness a new recipe for snuff. He had
not been turning out new snuff ; that he was
selling now was prepared on the same principles as
that sold seventy years ago. If he made snuff on
any other principle his trade would go. He did
not know that Bhakofsco had had large experience
in cigarette-making with Allen A Ginter, in
America. The labour used in making 100 cigars:
cost about 2s. 6d. per 100, though he could make
them for Is. 9d., exclusive of the cost of tebaooe.
Mr. J. R. Lancaster, accountant and agent,
deposed that Bhakofsco told him he was Max & Co.
When Bhakofsco was sued in the Resident Magis-
trate's Court witness was not instructed by
Bhakofsco to raise the defence that there was any
partnership between himself and Van Noorden.
By Mr. Bearle : Aooording to Shakofsoo's estimate
of the number of cigarettes produced from one
pound of tobaoco, he had supplied Van Noorden
with 10,000 cigarettes less than were due to him.
Counsel having addressed the Court,
Judgment was given by the Chief Justice. His
lordship said he would have expected that when a
partnership of this importance was entered into
there would have been some written agreement.
The law did not absolutely require a written agree-
ment, but what it did require was that where a
mere oral agreement was relied upon to prove the
partnership there should be very clear evidence
that there was the partnership. The plaintiff set
forth that there was a partnership, and the
defendant denied it altogether, and stated that there
was an agreement whioh, whatever it might amount
to, was oertainly not a partnership. He was satis-
fied, from the whole probabilities of the ease, that
the defendant never would have entered into any
suoh agreement as was set out in the declaration,
the plaintiff being a man of straw. It was said
that he possessed some skill, but his skill was not
so great that on that aocount alone defendant
would have taken him into partnership. The
defendant had a large and old-established business
in Cape Town, from which he derived large profits,
and the allegation was that the defendant not only
allowed the plaintiff to enter that business as a
partner, but also agreed to expend £2,600 in the
importation of fresh machinery, by which the
plaintiff was to benefit. Such a thing was
extremely improbable. The plaintiff further
relied upon some casual conversations whioh were
said to have taken place with Van Noorden. Those
conversations ne doubt tended to show that there
might have been a partnership, but it was possible
the witness misunderstood what took place ;
oertainly a partnership of that kind would hardly
be established by casual conversations between the
alleged partners. But to clinch the whole matter
they had the evidenoe ef the plaintiff himself,
239
given in the Resident Magistrate's Court, in a case
in which he was rued for certain moulds said to be
■applied for the purposes of the partnership. In
his evidence he then positively stated that the
moulds were ordered for Van Noorden. If the
partnership existed at that time it was impossible
to believe that such a defence would have been
set up. Either the plaintiff was dishonest then or
he was dishonest now. The two statements could
not be reconciled. If there was a partnership
when that case was before the Magistrate, then the
plaintiff was dishonest to say that he was not
liable at all for the moulds, and that the whole
liability rested with Van Noorden. In his opinion
the defendant's version of the facts was far more
probable. It was that an arrangement was made
for a month, the plaintiff to make cigarettes with
tobacco supplied by the defendant, who was to
retain control of the proceeds. That was
intelligible, seeing plaintiff owed money to
defendant. There was a claim in reconvention,
but he understood it would not be pressed.
Judgment would be for the defendant with costs,
and absolution from the instance upon the claim
in reconvention.
[Plaintiffs Attorney, D. Tennant, jn. ; Defen-
dant's Attorneys, Messrs. Fairbridge & Arderne.
SUPREME COURT.
WEDNESDAY, SEPTEMBER 2.
[Before the Chief Justice (Sir J. H. DS
ViLLlBEfi, K.G.M.G.) and Mr. Justice
Buchanan.]
GILL V. DB VRIES.
Lease — Alleged breach of covenant for quiet
enjoyment — Nuisance — Lose of business —
Damages — Counterclaim — Tender — Costs.
Mr. Schreiner and Mr. Graham for the plaintiff ;
Mr. Searle and Mr. Tredgold for the defendant.
This was a case in which the plaintiff, Mr. A.
Gill, claimed from the defendant, Mr. B. A. de
Vries, the sum of £100 in damages. The action
was brought by the plaintiff as lessee of certain
premises known as the Mashonaland Cafe*, at the
corner of Grave-street and Longmarket-street.
The premises were leased by plaintiff, and
hired by defendant, by a lease dated Feb-
ruary 21, 1891, to take effect from February
l f The ground of action was the alleged
existence and oontinuanoe on the premises,
during the time of occupation, of a nuisance
in the shape of a smell, dangerous to health, and
absolutely inconsistent with oomfort. The
premises were leased for use as a oaf e*, and also as
a residence for plaintiff and his family, but it was
alleged that owing to the very bad smell plaintiff
suffered greatly in business, and also in his own
health and that of his family. When plaintiff was
fitting up the place complaints were made that
there was a noxious smell, and notice was then
given the defendant, but nothing was done.
Afterwards repeated notice was given the
defendant, and in April and June plaintiff sought
the assistance of the town authorities in the
matter. In June the Municipality took steps to
put the place in order on Mr. De Vries's account.
It was then found (oounsel stated) that the state
of things was something frightful. Beneath the
floor of the premises was found a quantity of
noxious matter ; the ground below was saturated
with it, and there was found an old tub whioh had
been used as a kind of oess-pit. The tub
was full of very offensive matter. The defects
were remedied in part by the town authorities in
June, but plaintiff had then sustained very con-
siderable damage.
Defendant, in his plea, stated that plaintiff
called his attention to the nuisanoe in June, when
he immediately took steps to remedy it. The
smell was mainly due to the presenoe of I oertain
dead rats beneath the floor and to the escape of
gas from pipes put down by plaintiff. There was
a claim in reconvention for £45 for rent. An
action for the recovery of one month's rent,
£22 10s., was commenced in the Magistrate's
Court, but adjourned pending the decision in this
case.
Mr. Searle said that his client had tendered
£22 10s. and costs in the Resident Magistrate's
Court in full settlement for any damage plaintiff
had sustained.
Mr. Schreiner said that in that case the only
peint was as to the amount of damages.
Mr. A. Gill, the plaintiff, stated in evidence that
he took the premises for three years. He spent
about £240 in fitting up the premises. When
he first commenced the work of fitting up
the carpenters complained of the smell, and he
called defendant's attention to it. Mr. De Vries
replied that the place had been dosed up a long
time, and that when it had been opened a short
while the smell would disappear. In June, after
making repeated complaints to Mr. De Vries, he
caused the town authorities to take up the flooring
with a view to sanitary improvements being
made. When the floor was opened the ground
below was discovered to be a mass of sewage,
filthy, black, and full of worms, the passage itself
being alive with worms. There was a tub under the
240
wall full of sewage and stones. He had the tub
at onoe emptied, but even then it filled tip to a
depth of seven or eight inches. His takings in
March were £80 9s. 7d. ; in April, £112 8s. 8d. ;
in May, £78 19s. ; and in June, £46 10s. 8d. He
accounted for the falling off in takings because of
the smell. People sometimes got np and walked
out of the place without finishing their meals.
The members of his family were all taken ill, and
he was compelled to send them away to the
country, acting on medical advice. He had now
taken premises in Grave- street, and his customers
were coming back again.
By Mr. Searle : He only oom plained once to
Mr. De Tries in writing, but many times verbally.
He bad a large gas stove on the premises for cook-
ing, but it was not true that the next-door tenant
had complained that the smell arose on account of
the gas stove. In June he refused to pay the rent,
and decided to leave the premises. It was wholly
untrue that the smell arose from the stove. He
had spoken of a gassy smell, but by that meant
sewer gas. It was untrue that he poisoned rats in
the shop. He set rat traps for them, and caught
them, but had never poisoned a single rat, nor
were any dead rats found under the flooring when
it was taken up. He admitted his family slept in
partitioned rooms near the gas stove, but denied
that their illness was traceable to that. The smell
was most severe when there was a north-west wind
blowing. The stench at such times was intolerable-
His bookkeeping was somewhat rough, but it was
not true that the whole speculation had resulted
in a loss. He gave up the hope of making money
when he saw the abominable state in which the
place was, and set about leaving the premises as
fast as he could.
By Mr. Sohreiner : But for the smell he would
have been making a profit of £30 per month.
Mr. R. Mitchell, Chief Sanitary Officer of the
city, waB called, and said that on behalf of the
Town Council he was instructed to take the
ruling of the Court as to whether the books of the
Sanitary Department, which was supposed to be a
secret department, should be produced.
The Chief Justice said they must be produoed
in so far as they threw light on this (use.
Mr. Sohreiner said there were many things done
in secret, but he did not think the Sanitary
Department was a seoret one.
Mr. Mitchell then proceeded to give evidence.
He said that in April, 1890, a letter was sent by
Dr. Fisk to Mr. De Vries, calling attention to the
unsanitary condition of the premises in question.
That was before witness came, but the letter
appeared in the letter-book. In April of this
year, witness sent a further complaint to defen-
dant. At that time the smell was believed to
arise because of the gas meter. In June last the
defendant was again communicated with, and
eventually the floor was taken up and a cess-tub
discovered whioh had evidently been there from
the time when the place was built. The founda-
tion had been built over the tub, which was full of
sewage.
By Mr. Searle : It was possible that the builder
himself did not know the tub was there, but the
foundation had clearly been built over the tub.
Major Vibart, R.A., stated that he had fre-
quented the cafe' as a customer. He had very
often observed a most offensive smell there. In his
opinion the smell was not due to gas but sewage.
By Mr. Seaxle : He visited the cafe' most fre-
quently in June. The smell was worse in
June than in May. The reason why he con-
tinued to go there was that the cooking was so
exoellent that he even put up with the smell. He,
however, always went upstairs, where the smell
was least noticeable.
Dr. Baird gave evidence that he had attended a
child of Mr. Gill. It was suffering from feverish-
ness, headache, and general ill-health. He saw
the child several times in June. He himself bad
not observed any bad smell, but he called about
lunch time when the odour of food was prevalent.
He attributed the child's illness te the generally
unsanitary state of the place. He saw the soil
taken from beneath the flooring, and also the tub,
which was full of foul matter.
By Mr. Searle : He was not there till June.
The child slept in a partitioned room, through the
grill-room. The fumes from the gas stove, in
the absence of ventilation, would be injurious to
health. The child suffered from a sort of blood-
poisoning. He was quite satisfied of the cause of
the illness. It was in consequence of witness's
urging that Gill approached the Municipal
authorities.
James Ballard, sanitary inspeotor, said he went
with the Municipal Clerk of Works about June 11
to inspect the cafe'. When the flooring was taken
up the ground was soaked with sewage which had
leaked from the pipes, the latter never having
been properly jointed.
Mr. M. Fysh, plumber, said that he saw the tab
emptied, but when he came back, two hours later,
he found that Biz and a half inches of offensive
liquid matter had oozed into it again out of the
ground. He pushed a bar down below the ground,
and it came up covered with foul matter. The
smell did not arise from the coal-gas, nor from the
presence of dead rats, but from sewage.
By Mr. Searle : The tub was built entirely in
the centre of the wall, the footings of which were
actually in the tub. The size of the tub was three
feet by two feet nine inches, and across the top of
it was laid a piece of stone, forming part of the
foundation.
Mr. John Foster, plumber, corroborated tin
evidence of the previous witness,
241
Mr. Bui-land, assistant with Mr. J. Garliok, said
that in February last he was laying linoleum at
the cafe' He went there each morning for about
a week, and then noticed a bad smell.
By Mr. Searle : At that time the stove had not
been fixed.
Mr. T. H. Peagrim, bookkeeper with Mr.
Mailer, whose premises adjoin the cafe', said there
was a party wall between the two places. The
raiell coming from near the wall was so bad that
he had to leave the office. He took his meals at
the cafe*, bat left because of (he vile odours.
By Mr. Searle : He ceased attending the cafe'
in June. When he saw the tub he concluded he
had had enough food there, but now that Mr.
Gill had taken fresh premises he had gone back
again. The tub was found about four feet from
the Grave-street side of the premises.
Mr. J. M. Schwabe, salesman with Messrs.
Findlay 6 Co., said he saw the tub when the cafe'
was built, in 1880. He said at the time that it
was a shame that the foundation should be built
over a tub containing sewage. The tub was dis-
covered after a fire which burnt down the build-
ing. At times the smell from the property pene-
trated so far as Messrs Findlay's shop, and it was
found necessary to close the door to keep out the
odour.
By Mr. Searle : He was not aware that all the
drains in the vicinity of the cafe' were in a bad
state. There was one of the sinks known as
" stink-traps " at the very door of the cafe'. The
trap, however, did not account for the smell com-
plained of in the present action.
By Mr. Schreiner: Since the alterations had
beeo made the smell did not appear so bad.
Mrs. Gill, wife of the plaintiff, deposed that she
was ill every morning on account of the smell.
She was prepared to swear that customers had
gone out because of the smell.
By Mr. Searle : After the first month the busi-
ness was increasing, but it fell off very rapidly as
the smell grew stronger.
Mr. W. Cooke deposed that he previously occu-
pied the premises now known as the Mashonaland
Cafe', and was in occupation about six i months.
The sanitary condition of the place was very bad
indeed, and the proprietor, Mr. De Tries, took no
notice until he was compelled to do so by the
Municipal authorities. Something was done, but
it did not touch the seat of tha complaint.
Cross-examined : Mr. Wentzel was employed by
Mr. De Vries to look into the matter. He had a
quarrel with Mr. De Vries about twelve months
ago, when he was fined 2s. 6d. for a technical
assault. He never told either Wentzel or Robert-
son that he was satisfied.
Mr. Schreiner hiving put in certain corre-
spondence, and having addressed the Court,
The Chief Justice said that, in this case, the
Court must assume that the defendant was aware
of the defect, and further that the defects were of
a serious character. It was necessary that there
should be clear proof of damages. No doubt there
had been a falling off in the business, but there was
no proof whatever that the falling off was in oon-
tequence of the stench ; in fact, one of the
witnesses for the plaintiff said that, in spite of the
odour, he liked the cooking so much that he con-
tinued to visit the cafe'. There should have been
evidence adduoed that people ceased to frequent
the place because of the stench. If there had
been no tender of £22 10s., he would have been at
a loss to discover what amount of damages to
asses?, but as that amount had been tendered,
judgment would be for that sum. The only ques-
tion now was as to costs, and on that point he
would like to hear Mr. Searle.
Mr. Searle having argued the point, followed by
Mr. Schreiner on the other side,
The Chief Justice said that judgment would
be for plaintiff for the amount of the tender,
£22 10s. with the Resident Magistrate's Court
costs to 21st August, but without costs subsequent
to the filling of the plea. On the claim in re-
convention judgment would be fer De Vries, for
£45 and costs.
[Plaintiff's Attorney, C. C. Silberbauer ; Defen-
dant's Attorneys, Messrs. Tredgold, Molntyre k
Bisset.]
In re F. C. BELL.
Goods in transitu — Attachment adfundandam
jurisdictionem.
Mr. Schreiner moved that an attachment be
made of certain goods belonging to Mr. F. C. Bell,
of Johannesburg, under the following circum-
stances : It was alleged that the respondent was
indebted to the Van der Stell Gold-mining Com-
pany, whose head office was at Stellenbosch, in
the sum of £6,600, being the purchase price of the
property and plant, an 1 that his wife, Mrs. Maud
C. Bell, was proceeding to England that after-
noon on the U.R.M.S. Scot, having in her posses-
sion certain valuable property belonging to her
husband, whioh it was desirable should be attached
ad fundandam jurisdictionem.
Mr. Searle, who represented Mrs. Bell, read her
affidavit, from whioh it appeared that she was
married in London in 18?fi under a settlement.
About the 20th ult. she left Natal in the Scot,
aocompanied by her ohild, her husband remaining
behind. The articles in her p^ session were her
own property, beyond one or two practically
valueless articles belonging to her husband, who
had a good defence to any action brought against
him.
242
Mr. Sohreiner said the luggage had been
examined, and a list made of the articles found
therein. There was no objection to Mrs. Bell
taking away her property ; hat he claimed that of
her husband.
Mr. Justice Buchanan said he bad been led to
believe in Chambers that there was a great deal
of property, but he now saw that the Deputy
Sheriff valued the lot at about £10.
Mr. Sohreiner said he had nothing before him
exoept the petition.
Mr. Searle remarked that his learned friend
had found a mare's nest, and bad only discovered
some shirts, a couple of suits of clothes, and a
revolver, which it was now asked to attach as
security for the sum of £6,500. He believed there
were also a few bottles of wine. Further, he re-
marked, the contract was made in the South
African Republic, and not in this colony.
The Chief Justice said that as the applicants
only required something to found jurisdiction, one
shirt would be sufficient.
Mr. Searle rejoined that the applicants evidently
thought that they were coming upon a secret store
of wealth, and he did not think that such pro-
ceedings should be encouraged. He did not think
there should be any order as to oosts against Mrs.
Bell.
The Chief Justice said that the order would be for
the attachment of the goods belonging to Mr. Bell
ad fundandamjuritdictionem, and there would be no
order as to costs a gainst Mrs. Bell. Leave would
be given to sue by ediclal citation, returnable on
the first day of next term, publication in the Star
failing personal service; costs to be costs in the
cause.
KINCAID V. NIXON'S EXECUTORS.
Transfer — Action for — Power of Attorney
to pass transfer — Signature obtained
through alleged fraud and misrepresent-
ation — Trespass — Counterclaim.
Mr. Juta and Mr. MoLachlan appeared for the
plaintiff, and Mr. Sohreiner for the defendants.
This was an action for transfer, or in the
alternative for £100 damages, instituted by Mr.
F. A. Kincaid, against Ellen Johanna Nixon and
John Nixon, in their capacity as executors dative
of the late Joseph Nixon.
The declaration alleged that on or about the
28th February, 1891, the plaintiff bought from the
defendants through their duly authorised agents,
Messrs. H. Jones A Co., auctioneers, certain
two lots of ground of the divided estate
Claremont, for the price of £16. That there-
after the plaintiff paid the charges of the
auctioneer, and paid the purchase prioe
to Messrs. C. and J. Buissinne, attorneys, of
Cape Town, and acting as such for and on
behalf of the defendants. That a declaration of
purchaser w?s drawn by the said attorneys and
signed by tie plaintiff, but that the defendants
refused to pass transfer to the plaintiff. Where-
fore the plaintiff claimed that the defendants
should be ordered to pass transfer of the two lots
in question, or in the alternative to pay the sum
of £100 damages and oosts.
The defendants in their plea admitted their
refusal to pass transfer of the lots in question,
but specially denied that Messrs. H. Jones & Co.,
auctioneers, or Messrs. C. A J. Buissinne were
their agents or attorneys respectively in the
matter as alleged in the declaration, or that
they had any authority to sell the ground
in dispute. They also specially pleaded that
one Wordon, who was interested in the
plots, without authority procured the same to be
sold. Further, that on the 18th March Wordon
falsely and fraudulently represented to the first-
named defendant that a certain document, which
was really a pewer of attorney to pass transfer, was a
document to enable her to obtain certain moneys in
the hands of Messrs. C. A J. Buissinne, and by means
of fraud obtained her signature to the same, and
that as soon as she knew the purport of the said
document she repudiated the same. The
defendants counter-claimed for £5 damages
alleged to have been sustained by reason of the
trespass by the plaintiff on the aforesaid lots.
Upon these facts and pleadings issue was joined.
Mr. G. Trollip, attorney-at-law, deposed that in
1887 he was acting as attorney for the late Mr.
Nixon. At his decease the Board of Executors
came to him and demanded certain papers, which
he gave up. In January or February last Mr.
Wordon, who had a jeint interest in the land in
question, called upon him about the land, and he
referred him to the Board of Executors. He
subsequently saw Mr. Roos, secretary of the Board
of Executors, on the subject, and he stated that
the estate was closed, but if he (witness) liked to
sell the ground he could do so, provided that the
Board was put to no expense and received half
the proceeds. The sale was effected, Mr. Henry
Jones conducting the sale. No repudiation was
lodged by the Board of Executors. He gave a
power of attorney to Wordon for the executrix to
sign, and he returned the document with a signa-
ture purporting to be that of Mrs. Nixon. She
called upon him and asked for the purchase amount
of the property, and he told her she could get it
as soon as all the formalities had been fulfilled.
Mrs. Nixon never told him that she had been
induced by fraud or misrepresentation to sign the
power of attorney.
Cross-examined: He supposed that Mr. Boos
must have known that the property had been sold
243
to Mr. Yeoman. His instructions from the Board
of Bxeoutors were to oolleot the money and pass
transfer. In his experience in dealing with Boards
in this city he always fonnd that their word was as
good as their bond, consequently he did not require
written instructions.
Mr. A. fl. Macleod corroborated the evidenoe of
the previous witness.
Mr. 8. Wordon deposed that he went to see Mr.
Boos concerning the two lots of ground, and he
informed him that the Board was willing that the
land should be sold, but would not hold them-
selves responsible for any expense. Witness
imagined that he would receive half of the pro-
ceeds of the sale. He left the affair entirely in the
hands of Mr. Troll ip. After the sale took place
he took a power of attorney te Mrs. Nixon to sign,
in order that transfer might be passed. He did
not misrepresent the condition of affairs to her.
Cress-examined : The ground was already sold
when he visited Mrs. Nixon.
Mr Henry Jones deposed that he received
authority from Mr. Trollip to hold the sale in
question.
Mr. J. T. Roodt deposed that he knew the two
plots ef ground at Glaremont, and had offered £80
per plot to Kinoaid, the purchaser.
(3rd SEPTEMBER.)
The hearing of this case was resumed ; Mr. Juta
and Mr. MoLachlan for the plaintiff ; Mr.
Bohreiner for the defendant.
Mr. J. H. N. Roos, secretary of the Board of
Executors, gave evidenoe that Mr. Wordon called
several times era him to ask for a re-sale of the
lots, but he told him that was impossible without
consent of the parties concerned. He met Mr.
Trollip on one occasion, when that gentleman said
that Wordon was getting troublesome, and that
perhaps the land had better be sold. Witness
replied that the Board would take ne such
responsibility. Mr. Trollip was mistaken in saying
that witness consented to the sale on the condition
that no expense was incurred. As secretary of
the Board, he never in any case authorised a sale
before the Board's consent being obtained. If he
had given authority, as was stated by Mr. Trollip,
it would be the first time he had ever
acted in that way. He was unaware of
the sale until a couple of days after it had
actually taken place. When he heard of the sale,
he immediately concluded that the executors had
authorised it. When Mr. McLeod called with
papers regarding the declaration of sale, witness
distinctly refused to accept any responsibility
whatever in the matter. On April 2 he received a
letter on the subject, which he at once showed to
the chairman of the Board.
By Mr. Juta : He distinctly said that he knew
nothing of the sale until after it was effected. He
had heard Mr. MoLeod's evidenoe. It was possible
that, when Mr. McLeod said he had seem him
several times on the matter, Mr. McLeod was
mistaken. At all events, he did not recollect
seeing Mr. MoLeod more than onoe on the
subject.
Mr. J. H. Hofmeyr, chairman of the Board of
Bxeoutors, deposed that in no case would the sale
have been authorised without the consent of the
Board. In the : present case not only was no con-
sent given, but the Board opposed the sale in
every way, and he instructed Mr. Boos to have
nothirg to do with it. He had always refused to
allow the sale because he was aware that the land
was already sold.
By Mr. Juta : There was no direot obligation
upon the Board to oolleot the money due from the
original purchaser of the land or his surety.
By the Court : He was firmly convinced that
Mr. Roos never in any way sanctioned the sale.
Mr. G. W. Dillman, clerk with the Board of
Bxeoutors, stated that on several occasions Mr.
Wordon came to see Mr. Boos, in whose room
witness was engaged. Mr. Boos on all occasions
absolutely refused to permit the sale, informing
Wordon that the land was legally and formally
sold already.
By Mr. Juta : He never heard Roos remark
that he did not object to the sale going through if
the Board were not fixed with the expense.
Mrs. Ellen Nixon, one of the defendants, said
she was executrix in her husband's estate. She
knew nothing of business, and left affairs in the
hands of the Board of Bxeoutors. In March,
Wordon, whom she did net reoognise as having
any claim on her husband's estate, came to her and
said that if he were not looking after her business
she would lose her money. He said there was
some money for her at Mr. Trollip's office. She
asked what the money was for, but Wordon did
not tell her. He asked her to sign a paper then
and there, but she asked him to leave it, telling
him she could not understand it. Wordon pressed
her to sign it, and she at last did so, but only under
the impression that she was signing a receipt for
the money Wordon had spoken of. Some days
later she went to Mr. Trollip's office, and asked
for the money, but was told there was no money
for her.
By Mr. Juta : She knew nothing of the original
sale of the land to Yeoman. Had she known that
Wordon wanted her signature for the purpose of
allowing the sale of the land she would absolutely
have refused to give it. She would have author-
ised no sale without consulting her attorney.
Mr. G. G. de Villiers, attorney gave evidence
that in his presence Mrs. Nixon denied to a clerk
of Mr. Trollip that she had signed a power of
attorney authorising the sale of the land.
1
244
The Chief Justice, in giving judgment, said that
in order to enable the plaintiff to suooeed the
burden lay upon him ef clearly proving consent to
the sale on the part of the executors, or the general
agents of the executors. There was a great con-
flict of testimony as to what took place in the
communications between Mr. Trollip and Mr.
Koos. He was quite satisfied that Mr. Trollip did
understand that there was a consent given ; but he
was also satisfied that Mr. Roos did not so under-
stand it. Under the circumstances, he was of
opinion that there must be an absolution from the
instance with coats.
Mr. Justice Buchanan ooncurred.
[Plaintiff's Attorney, fl. P. du Preez ; Defen-
dants' Attorney, C. C. de Villiers.]
SUPREME COURT.
THURSDAY, SEPTEMBER 3.
[Before the Chief Justice (Sir J. H. DK
Villiers) and Mr. Justice Buchanan.]
Company — Bank in liquidation — Unlimited
liability — Contribuiories — Calls — Deceased
shareholder — Executors — Negligence —
Liability of heirs —Ordinance No. 104 —
Section 32.
WATSON'S EXECUTORS V. WATSON'S HEIRS.
Sir T. Upington, Q.C., and Mr. Juta appeared
for the plaintiffs, Mr.T. L. Graham for Mr. H. T.
Watson, and the Acting Attorney-General (Mr.
Searle) and Mr. Melteno for the defendants.
This was a case arising out of the liquidation of
the Union Bank. An order was made by the
Supreme Court to place the executors on the list
of contributones. A question arose as to the pay-
ment out to the heirs, from time to time, of the
amount of the inheritance which became due to
them as heirs, and the matter stood over to enable
the present action to be brought, on the part
of the executors, to recover back into the estate
fer the purposes of the liquidation of the Union
Bank the amount of the inheritance paid to certain
of the heirs. The defendants were four in num-
ber—Harrison Eraser Watson, Thomas Tennant
Watson, Mrs. Bolus, and Miss Watson. The re-
maining six heirs were either out of the juris-
diction of the Court or it was not possible to have
the question decided with regard to them. The
point at issue was as to whether the money oould be
got back or not. The defendant H. P. Watson
submitted to the jurisdiction of the Court. The
facts appear more fully from the declaration, which
is as follow :
1. The pUii-tiff is one of the duly-appointed
executors of the late Thomas Watson The
defendant Harrison Fraser Watson is the other
executor in the said estate. (By order of the
Supreme Court, dated 23rd June, 1891, the plain-
tiff was granted leave to sue alone.) The
defendants are some of the children of, and heirs
under the will of, the late Thomas Watson.
2. The said Thomas Watson was at bis death,
to wit, in the month of February, 1884, the
registered holder of 100 shares in a certain joint-
stock bank, with unlimited liability, known as the
Union Bank, carrying on business in Cape Town.
3 In March, 1884, the executors in the said
estate publicly advertised that all claims against
the said estate should be filed with them within
six weeks, and thereafter they framed and filed
up to and including the year 1885 six liquidation
accounts. No claim was filed by the said bank.
4. In April, 1886, the said Union Bank made a
call of £5 upon each share in the said bank, pay-
able in instalments. The sums of £400 and £100
paid by the said executors in terms of the said
call were brought up in the sixth and seventh
liquidation accounts framed and filed by them in
the said estate. Copies of the said accounts were
either sent by the said executors to each of the
defendants, or were examined by them personally,
who also received and accepted the amounts
awarded to tbem upon footing of the said
accounts.
6. In the moBth of January, in the years 1889
and 1890, the said bank paid a dividend to
shareholders therein of 10s. per share, which divi-
dends, amounting to £100, were brought up in the
ninth and tenth liquidation accounts framed and
filed by the executors in the said estate. Copies
of these said aocounts were either sent by the
said executors to each of the defendants, or were
examined by them personally, who also received
and accepted the amounts awarded to them on
footing of the said accounts.
6. In the month of March, 1890, the said
executors sold fifty of the said shares, the residue
remaining as heretofore in the name of the late T.
Watson with the knowledge and consent of the
defendants.
7. On the 1st August, 1890, the said bank was
by order of the Hon. the Supreme Court placed
under the operations of the Winding-up Aot, the
estate of the late T. Watson was placed upon the
list of contributories in respect of the said fifty
shares, and on the 8th and 12th September, 1890,
calls to the amount of £160 per share was
authorised by order of the Court.
8. The funds available in the hands of the
executors for the payment of the said call, amount-
245
ing in all to £7,600, was the rum of £425 17s.,
and there are no further assets belonging to the
•aid estate wherewith to pay the balance which
remains due on the said call.
9. Under the ten liquidation accounts aforesaid
there was paid to and received by each of the
defendants, as heirs of the late T. Watson, the sum
of £4,813 2s. The said amounts were paid and
received without any knowledge or contemplation
of the facta that the bank would be placed in
liquidation and that a call would be made on the
shares held in the *aid bank, but, on the contrary,
were so paid and received under belief of the fact
that no call would be made. The said bank has
not yet been finally liquidated, and the said calls
will not be sufficient to pay the liabilities of the
said bank. The plaintiff submits that the
defendants are not entitled to retain any of the
amounts so paid and received as aforesaid while
the bank remains under liquidation, but the
defendants, though requested so to do, refuse to
pay to the plaintiff for the purpose of meeting the
calls already made, and which may hereafter be
made, the amounts so paid and received as afore-
said, or any part thereof.
Wherefore the plaintiff prays :
(a) That each of the defendants may be ordered
to repay to the plaintiff the sum of £4,813 2s.,
with interest a tempore mura.
{b) For such other relief as to this Honourable
Court may seem meet.
(e) Goats of suit.
The defendants pleaded, inter alia, that it was
the duty of the executors promptly and timeously
to have sold the said shares within the period of
six months, or at the most one year after they
were so appointed, and not to have suffered them
to remain in the estate.
That the defendants refused to take over any of
the said shares in the said estate when requested
by the executors so to do, and repeatedly requested
the executors to dispose of the said shares as they
could and should have done in that behalf.
That the said executors wrongfully, unlawfully,
negligently, and in breach of their duty detained
the said shares in the estate, and failed to realise
them, and are consequently responsible for any
loss or damage whioh may accrue by reason of the
•aid shares being still registered in the name of the
late Thomas Watson.
They denied that the fifty shares sold in March,
1890, had been sold with their knowledge and oon-
tent, and said that it was the duty of the executors
at that date, or at the earliest date possible there-
after during 1890, to have disposed of the
remainder before the stoppage of the said bank,
seeing that they had previously neglected their
duty in that behalf.
They admitted that the liquidation accounts
(referred to in the declaration) had been filed, and
2k
that each of the heirs had received £4,813 2s., but
they alleged that these amounts were received
from the executors as being moneys accruing from
their father's estate, ai d to which they were
absolutely entitled without subsequent liability in
respect thereof, and by reason of the allegations
above set forth and the provisions of Ordinance
104, and more particulary section 32 thereof, and
the laws of this colony in that behalf, the defen-
dants said that they were not liable to return the
said moneys at the suit of the plaintiff.
Finally, the defendants denied knowledge as to
the sufficiency or otherwise of the calls made by
the liquidators of the said bank, but they said
that if any loss had been sustained by reason of
any liability to the said liquidators in respect of
the shares still in the name of the late Thomas
Watson, such loss ought to be borne by the
executors for the reasons herein set forth, and not
by the defendants.
Wherefore they prayed that plaintiff's claim
should be dismissed with costs.
Upon these pleadings issue was joined.
Sir T. Upington remarked that it was some-
what difficult to see how that defence could be
dealt with ; there was no claim in reconvention,
but it was simply asserted that the executors im-
properly retained possession of the shares.
Mr. Graham said he desired to explain the
position of Mr. Harrison F. Watson, who, besides
being an heir, was co-executor under his father's
will. When the present case was commenced, Mr.
Watson at onoe submitted to the jurisdiction of
the Court.
Mr. W. A. Currey, secretary of the General
Estate and Orphan Chamber, one of the plaintiffs,
deposed that in 1884 tenders were called for the
shares, but the only offer received was one of 10s.
for ten shares. The executors accepted the
tender, but the bank declined to transfer the
shares. Then the executors advertised the remain-
ing ninety shares, but no offer was made. The
executors paid £600 in calls on account of the
shares. In 1886 the shares were perfectly unsale-
able. In 1889 the executors approached Messrs.
Edwards A Arnold and asked them to buy the
shares, but no offer was made. In February,
1890, fresh tenders were called for, but none
received. Then there was an attempt made to sell
the shares en the stoop of the Commercial
Bxohange, and fifty were sold and brought into
the next account submitted to the heirs. The
executors never apprehended at that time that
there would be further calls on account of shares.
By Mr. Searle : He was aware that some bank
shares were sold in 1888. He did not remember
selling a parcel of three shares in that year for 64s.
apiece. He was aware that as the result of a
flourishing report issued in 1888 Union Bank
shares went up to £4. He was aware that in 1888
246
Air. John Rote (chairman of the Union Bank)
purchased a parcel of 614 Union Bank shares in
the estate of Dn Toit. The fifty shaies were sold
for 26s. apiece. It was true that in 1884 he said
the executors would sell the bank shares as soon as
they could, and they tried to do so. The shares
were at the highest value at the commencement of
1889, but his information on the subject
was hearsay. He was told that the shares
were selling up to £4 apiece. He did not
consult the share lists at the end of 1888,
or the beginning of 1889, as to the prices at which
Union Bank shares were selling. He had no
reoolleotion of a conversation with Mr. T. T.
Watson in the course of which that gentleman
distinctly told him that it was his idea that the
heirs could refuse to take the shares. 8o far as he
remembered, net one of the heirs ever asked that
the Union Bank shares should be sold. He
accounted for the fact that he sold 125 Union Bank
■hares in the estate of Mr. Kotzrf by the circum-
stance that in that case the heirs specifically asked
that the estate should be closed and the shares sold.
Re-examined : He was never specifically asked
by the heirs to sell the Union Bank shares.
This closed the plaintiff's case.
The Chief Justice said he did not understand
how the plea of the defendants could be sustained
in that form of action.
Mr. Searle said he had proceeded in the way in-
dicated by the Court when the circumstance* of
the case were recently under consideration.
The Chief Justice said the Court indicated no
such line of action.
Mr. Searle said in that case it seemed that all
the circumstances would have to be gone into over
again, which seemed a pity, seeing the expense
that would be incurred.
The Chief Justice : It is net the fault of the
Court. It is a pity your plea was not excepted to.
Mr. Searle said that after what had fallen from
the Court he failed to understand the plaintiff's
replication at all.
Counsel then called
Mr. Thomas Tennant Watson, Government land
surveyor, one of the defendants. Witness said he
remembered on one occasion distinctly telling Mr.
Currey to sell the shares. He caused his attorney
to write to Mr. Currey, informing him he would
hold the executors responsible for unduly retain-
ing the shares. Mr. Currey replied denying
liability.
By Sir T. Upington : When he instructed Mr.
Currey to sell the shares, he said it was a great
nuisance, and that he wished to get rid of the
shares. He believed that after that time he
received dividends on account of the shares.
Re-examined : He never told the executors that
he relieved them of liability on account of the
shares.
By the Court : He could not say whether it was
before or after the failure of the bank that he
knew what dividends had been paid, but he no
doubt did know that dividends were paid on shares
in the estate.
Mr. Henry Hall, formerly cashier of the Union
Bank and now in the employ of the liquidators,
gave evidence that he had prepared from the
books of the bank a statement put before the
Court with regard to these shares. In 1888, 1889,
and 1890 Union Bank shares were freely dealt
in. In 1890 1,200 shares were sold.
By Sir T. Upington : He did not know what
prices were being got for the shares.
By the Court : There was a general direction in
1884, when the bank was not so financially sound,
not to transfer shares from people financially
g.wd to those not so. Watson's estate was con-
sidered financially good. It was decided in 1886,
when the £6 call was made, that in future great
care would have to be taken in allowing transfer,
and that direction remained in force till the bank
stopped payment. The fifty shares which were
sold were transferred to Robert Lloyd, of Fort
Beaufort, into whose circumstances inquiry was
made before transfer was allowed.
Mr. G. H. Moller, auctioneer, and a late direotor
of the Union Bank, said that in 1888 he sold about
800 Union Bank shares, 600 of which were pur-
chased by Mr. John Ross. In September, 1888, he
could have sold his own shares for a higher price
than 86s. On the day when Mr. Ross bought 600
he could have sold 200 more. In June, 1889, he
bought four shares, at 40s. apiece, at public
auction. They belonged to Mrs. Currey. In
March, 1890, he bought 80 shares, at 10s. each, and
sold them subsequently for 86s. each. In 1888 the
Union Bank shares were in very fair demand.
There were no special restrictions as to the re-leas-
ing of estates in 1888, but of course the directors
would not authorise transfers to men of straw.
There would have been no difficulty in 1888 in
transferring the shares in the estate of Watson.
In that year many influential people were buying
Union Bank shares, and transfers took place
freely. In 1887 he sold Union shares at 10s. each.
There was a favourable report issued in 1888, and
the Bank was all right till June 80, 1890.
Mr. George Twyoross, member of the firm of
Twyoross A Co., brokers, Cape Town, said he did
a large business in share broking, and had done
so sinoe 1881. In 1888 and 1889 Union Bank shares
were in fair demand. If he had had fifty Union
Bank shares in 1888 he could have sold them to
people to whom the bank would have had no ob-
jection. In that year he bought fifty shares on
account of himself and Mr. Roux for 26s. each. In
1886, when the call was made, the shares would
not sell, but in 1888 they sold fairly. In June,
I 1888, he sold forty-four Unions at 46s^ and resold
247
tftem at 60s. During the" same month he sold
twenty more at 42s. 6d. He knew of transactions
in 1889.
By Sir T. Upington: He sold none in 1889 or
1890 ; bnt none were ever offered to him for sale.
Mr. Henry Jones, auctioneer, stated that in 1888,
1889, and 1890 he sold Unioa Bank shares. In the
two former years the shares sold readily, at a
price. The prices be obtained in 1889 ranged from
42s. to 92s. He put np some shares at Mr. Carrey's
request, bat the only bid was one ef 6s. each, which
Mr. Cnrrey would not accept.
By SirT. Upington: If Mr. Cnrrey said that
the bid of 5s. was only for twenty shares he would
not contradict the statement. He could not
actually state that the shares offered on that
eocasion were the fifty shares now in suit.
(SEPTEMBER 4th.)
The bearing of thii case was resumed. Sir T.
Upington, Q.G., and Mr. Juta appeared for the
plaintiffs ; Mr. T. L. Graham for the defendant
H. F. Watson ; and the Aoting Attorney-General
(Mr. M. Searle) and Mr. Molteno, for the other
defendants. Counsel proceeded to address the Court.
Sir T. Upington contended that the evidence
laid before the Court by his learned friends was
not relevant to the issue raised in the case.
Mr. Searle said it was quite true that the
defendants did consider that negligence entered
into the case, but he was quite prepared to argue
the legal question of whether executors could
recover back the money paid to the heirs. When
the circumstances of the case were before the
Court on motion the Chief Justice asked the
question whether executors should not lay aside
enough money to meet possible calls on shares in
an unlimited liability company.
The Chief Justice : That was upon the ques-
tion of whether the executors were liable de bonis
propriis. In the present case the circumstances
were different.
Mr. Searle: The peint was whether the
executors were not the proper persons to sue.
The defendants had been clearly misled by the
form in which the plaintiffs had brought their
action. The plaintiffs had been accused of negli-
gence in disposing of the shares, and they bad
actually replied that they used every endeavour
to sell them. Upon those pleadings issue was
joined, and he could not understand his learned
friend's remark that the evidence and plea were
irrelevant.
Mr. Justice Buchanan : Independently of negli-
gence, do you admit that the executors are entitled
to recover from the heirs the money paid on the
shares in the estate ?
Mr. Searle said he would argue most strongly
that according to statutes and the Roman-Dutch
law they were not entitled so to recover. The
question of negligenoe was of the utmost im-
portance in the case, seeing that Mr. T. T. Watson
had distinctly sworn that on one occasion in par-
ticular, in the year 1888, he specifically told Mr.
Cnrrey to realise the shares, and that Mr. Currey
had said that he would not absolutely deny it.
Clearly the duty of the executors was to get rid of
dangerous assets as soon ss possible, whether the
heirs specifically told them to do so or not. His
legal view of the case was that it had to be dealt
with as though these defendants were legatees.
Supposing the late Mr. Watson had left £10,000
for the building of a hospital, and had also left 100
Union Bank shares, which the executors had not,
although they could have, sold, and supposing that
the £10,000 were paid over, and the hospital built,
the exeoutors would not afterwards be heard t# say
that they claimed from the hospital trustees an
amount equal to the call on the 100 unsold shares.
It might be said that was an extreme case, but
substantially the same principle was involved in
the present action. The exeoutors had distributed
the estate, and the heirs had altered their whole
position in life when they received the money, and
it would be an extraordinary thing to hold that the
executors oould now re-open the matter and
recover back money which perhaps had been spent
long since. The executors had not acted without
knowledge ; they bad dear notice of the claims,
and if they disregarded the notice they did so at
their own risk.
The Chief Justice : The executors did not
know there was going to be a claim. They knew
there was a contingent liability, that was all.
Mr. Searle : The point was, should not the
executors have considered the asset a dangerous
one, especially when a call of £6 was made upon
these shares ? The executors could not say there
was no likelihood of the bank going into liquida-
tion, because even in 1886 it was in dire straits.
The exeoutors said it was the duty of the heirs to
have specifically ordered a sale of the shares, but
he asked what the executors were there for ?
They were there as business men in whom the
testator had confidence, and they should have
acted on their own knowledge of facts. The heirs
did not know the exact position of the estate, and
the unadministered assets never appeared in the
accounts. It was not a matter of the executors
being ignorant ; the law fixed them with knowl-
edge. If Mr. Tom Watson were believed when
he said that on one occasion he distinctly told Mr.
Currey to sell the shares, then the fact that Mr.
Watson afterwards accepted dividends on the
Bhares and accounts in the estate did not in the
least relieve the executors of their liability for
the retention of the shares. Mr. Currey had sold
four Union Bank shares on account ef Mrs. Currey,
a^d 125 in Kotge"s estate, in which he was only
248
executor two years, and in addition nearly 4,000 of
the shares were transferred in 1888, 1889, and the
first part of 1890, yet Mr. Onrrey had not sold the
fifty shares in this estate, and to that extent he
contended he had failed in his duty as executor.
The heirs had taken up a very strong position ;
one of them said that he would on no aooount
accept the bank shares, and another offered to
accept Cape of Good Hope Bank shares but not
the Union Bank shares, and that circumstance was
very relevant on the point of notice to the
execntors. He submitted that the Union Bank
could have interdicted the executors from parting
with the money, and if that were so the plaintiffs
could not now succeed.
Mr. Justice Buchanan : In what way could
the bank have interdioted the executors. There
was no debt, but only a contingent liability.
Mr. Searle: Contingent debts can be proved
in an insolvency, and the bank could have come
forward and said that as it might have need
of the money hereafter the executors should be
debarred from parting with it to the heirs before a
sufficient sum was laid aside to meet possible calls
on the shares. He did not in the least impeach
Mr. Currey's bona fides, but he did say that he was
charged with the duty of selling the shares.
Sir T. Upington, in answer to the Chief Justice,
said that there were ten heirs, one of whom was
dead, and he took it that the estate of that one
was distributed among the other heirs.
Mr. Searle : A t the utmost all that each heir
was responsible for was £760, the call on five
Hhares. The heirs were dealt with separately, not
as a body.
Sir T. Upington : My contention was that the
plaintiffs could claim in excess of the £750 from
each heir, but not from any one heir, a sum in ex-
cess of the amount actually received by him.
The Chief Justice : All the heirs should have
been sued, including the exeoutor of the deceased
heir.
Sir T. Upington said that was oorreot, but one
heir was in the Transvaal, and all the others, with
the exception of the present defendants, in
England. The executors had therefore been f oroed
to sue the heirs who were within the jurisdiction
of the Court.
The Chief Justice, in giving judgment, said that
at the time when the late Mr. Thos. Watson died
there were Union Bank shares in his estate.
After his death fifty of thoBe shares were sold, and
at the time that the bank was placed under the
operation of the Winding-up Act there still re-
mained fifty shares in the estate. There had been
a great deal of argument upon the question of
whether or not there was negligence on the
part of the executors in not selling all the shares.
In his opinion that question did not fairly arise
|n the present case, which was an action brought
by the executors qua executors against the heirs
who had received their inheritance, and if this
debt were now due, as they must take it it was
due, from the executors in their capacity aa such,
then in his opinion the executors, having paid
over the money to the heirs, were entitled to re-
cover it back. As to the money being due, there
could be no doubt whatever, because there was
actually a judgment debt against the executors.
There had been virtually a return ef nulla bona,
and subsequently to that return an application
was made to the Court by the liquidators of the
bank to recover the amount of the call from the
executors de bonis propriis. The Court, considering
the hardship which such a course might
entail upon the executors, decided that
before making such an order it wenld
give an opportunity to the executors of re-
covering back from the heirs the money paid
out to them, but in coming to that decision the
Court did not express any opinion to the effect
that any negligence on the part of the executors
in not selling the shares at the proper time would
be a good defence to the action brought against the
heirs by the exeoutors. The question having been
raised, however, he was of opinion that it was no
defence at all. If the heirs had any claim against
the exeoutors individually it was still open to them
to bring an action, but in the present case there
was not even a claim in reconvention which would
justify the Court in giving judgment against the
exeoutors, nor did he see how such a claim could
have been filed, seeing that the action was not
brought by the General Estate and Orphan
Chamber in their individual capacity but as the
executors in the estate of Watson. Reference
had been made to Ordinance No. 104 of
1833, section 32, but the Court had
more than once intimated that the persons
there referred to as having just and valid claims
were not legatees or heirs but creditors, and the
rights of heirs and legatees and their obligations
had still to be decided by the common law. Now,
under the common law, in his opinion, executors
against whom there was a judgment, as there was
in this case, for a debt owing by the deceased, and
who had paid out inheritances to the heirs in
ignorance of that claim, were entitled to recover
back the money from the heirs. That being so,
the executors were, in his opinion, entitled to
recover back from the heirs in Watson's estate the
amount of inheritance which had been paid to
them, the amount of the call for which judgment
was given not exceeding, however, the amount of
inheritance paid to the heirs. A further question
of importance in the oase was as to whether the
judgment should be against the present defendants
jointly and severally, and that the Court would
like to take time to coBgider. The form of the
judgment would be reserved, but perhaps before
249
final judgment was given the parties would come
to an arrangement.
Mr. Justice Buchanan concurred, and said he
wished expressly to state that the question of the
liability of the executors de bonis proprti* was in
no way affected by that case.
The Chief Justice said that as to costs they
would follow the result. He threw oat a sug-
gestion during the course of the argument that
pessibly the plea might have been excepted to, but
as the plea was so mixed up with the rest of the
defence, it would have been difficult to have
excepted to it.
Mr. Graham asked the Court to make a special
order as to costs in the case of his client, Mr. H.
F. Watson, since he had not denied the allega-
tions in the declaration, and had submitted to the
jurisdiction of the Court.
The Chief Justice said the Court would consider
how to apportion the costs when giving final judg-
ment.
At a later stage of the sitting,
The Chief Justice said the Court had considered
the question as to whether the defendants were
liable jointly and severally, and had come to the
conclusion that each defendant was liable only for
£750. If the creditor would not have the right to
recover more than a portion from each of the
heirs, a fortiori the exesators would not have the
right. The sum of £750 would be payable by each
of the ten heirs, but £425 17s had already been
paid ; therefore judgment would be against each of
the defendants for £707 9s. Od. A s to costs, he did
not see why the first-named defendant, Harrison
Frater Watson, should be relieved from his share
of the costs. There had been no tender of the
amount dne by him, and the result weuld be that
each defendant would be liable for one-fourth of
the costs. The form of the judgment would be for
the plaintiffs for £707 9s. Od. against each de-
fendant with costs.
Postea (September 8th) the Court ordered
the. heirs to pay a proportionate share of
whatever interest the executors were liable for to
the liquidators.
[Attorneys for the Plaintiff, Messrs. Reid &
Nephew ; Attorneys for the Defendants, Messrs.
van Zyl & Buissinne and Gus Trollip.]
CAPE TOWN TOWN COUNCIL V. METBOPOLITAN
AND SEA POINT RAILWAY COMPANY.
Company— Statutory rights — Threatened
expropriation of land — Interdict — Arbitra-
tion.
Mr. Sohreiner applied, as a matter of urgenoy,
for an interact on behalf of the Town Council of
Cape Town against the Metropolitan and Sea
Point Railway Company, in respect of a threatened
expropriation, of the Cape Town Fish Market.
Council read the affidavit of Mr. W. Bromehead,
Town Clerk of Cape Town, which was to the
effect that the respondent company by an Act of
Parliament had obtained rights to construct a line
of railway between Cape Town and Sea Point.
According to an annexed copy of plans deposited
with the Clerk to the House of Assembly, it was
never intended that the line should touch the
lower corner of Adderley-street or the Fish
Market. The Town Council were owners of the
Fish Market under a freehold grant from the
Colonial Government. On August 31 the solicitors
of the Town Council received a letter to the
effect that the respondents were not aware that
the Town Council possessed any proprietary rights,
and that due notice was served on the Town
Council eighteen months ago, but that if the
Town Couneil oould prove it was entitled to
any land near the Fish Market, the company was
prepared to acquire such land, and tendered,
without prejudice, the sum ef £1 per square rood,
and requested an answer from the Town Council
as to whether it accepted the offer. The directors
had acoepted a suggestion of Government to take
the land near the Fish Market, and were desirous
that the work should be done at once, and the line
opened for traffic. To that letter the Town Coun-
cil replied on Wednesday to the effect that the
company's letter was the first intimation received
by the Town Council : that the company intended
taking the Fish Market for the purposes of the
line ; that the oompany did not originally intend
to take the site of the market, as was shown by
the use of the remark that the company had
accepted a suggestion ef the Government ; that
the Town Council had no wish to sell or dispose of
the Fish Market site, and denied the company's
right to expropriate the same without permission
and consent ; that the fishing industry of Cape
Town was of great importance to a large section
of the publio ; that the site of the present market
was acquired in exchange for another valuable
piece of land ; and that the removal of the market
would entail considerable monetary loss and great
inconvenience to the public and the fishing com-
munity. Under thoee circumstances, the Town
Council had to look at the matter not
merely from a legal point of view, but from the
point of view of the publio interests, and after
giving the letter of the company full considera-
tion the Town Council was of opinion that the
document was most vague in its terms as to what
the oompany desired to acquire. The Council
therefore asked for a plan of the land required,
together with a plan of all buildings, erections, and
sidings to be made, the plan also to indicate in
what manner the railway would approach the site,
250
In reply to that the respondent! wrote late on
Wednesday afternoon that the site in question was
absolutely necessary for the purposes of the rail-
way, and the directors were strongly advised they
had power to take it under their Act. That being
so, the company desired the Council to refer its
claim to arbitration, and it was added that the
company intended to take possession of the land on
Monday, September 14, at seven a m.
The Chief Justice : Then why apply on the 3rd ?
Mr. Schreiner said that the company asked the
applicants to appoint an arbitrator, and said that
if they did not do so the direotors would pay into
the bank a sum they considered sufficient.
The Chief Justice : Whatever they do will be of
no use to them unless it is legal.
Mr. Schreiner said there was one contingency.
If that company's legal position were good— he did
not for a moment admit the possibility— the
Council, if it did not appoint its arbitrator in time,
would lose the right ever to go to arbitration. It
was of the greatest importance to the Town
Council that the matter should be determined.
The company had given notice that by Saturday
the Town Council must appoint its arbitrator.
Counsel continuing said that the affidavit of Mr.
Bromehead prooeeded to state that he was in-
formed that on August 81 some of the leading
fishermen were told that the company would take
the market, and that the fish-dealers would have to
vacate their holdings. If the respondents were
by law entitled to expropriate the site of the
Fish Market, then under the Act they must
give the requisite notice and complete arbitration.
The Council was a public body, summoned by
notioe, and it was impossible for it to move with
the same speed as private individuals. The Town
Council by its Act was debarred from selling or
alienating land without the consent of the
Governor, which in this case had not been ob-
tained. The Town Council asked for suoh relief
as would prevent the forcible seizare of the site,
or the trespass of any of the offioers of the com-
pany, and in the event of the Court holding that
expropriation could be made, that fuller notice
should be given. There was absolutely no limit
of deviation shown on the plan with regard to the
Fish Market.
Mr. Justice Buohanan : They don't intend to
take the ground yet.
Mr. Schreiner: On the 14th, my lord.
Mr. Justice Buchanan : Cannot you reply that
you do not accept their notice, and will take oat
an interdict if they take possession of the land ?
The Chief Justice : What is to prevent your
appointing an arbitrator and reserving to yourself
all rights, notwithstanding the appointment ?
Mr. Schreiner : It will be said that we sub-
mitted to arbitration, and so lost our rights. We
know the people with whom we are dealing, and
1
it is very undesirable to do anything of that kind.
One would think these people were not serious,
but we know that they are, and that they will de
these things unless they are stopped. Counsel
went on to state that the Town Council had no
desire for litigation, but cnly desired to protect
the general interests of the town and the
ratepayers.
The Chief Justice, in giving judgment, said that
it was somewhat inconvenient to have an applica-
tion of that sort sprung on the Court without
notioe. He did not see what the applicants would
have suffered by letting the matter stand over and
giving notioe to the respondents, who did not pro-
pose to expropriate the land till the 14th inst.
However, as the application was before the Court,
he thought the better oourse would be to direct
the applicants to proceed by motion duly served en
the respondents, the Court to hear the case on
Tuesday next. Meanwhile all proceedings of the
respondents in the oourse of the expropriation of
the line would be stopped.
SUPREME COURT.
FRIDAY, SEPTEMBER 4.
Before the Chief Justice (Sir J. H. DB VILLI BRS,
K.C.M.6.) and Mr. Justice BUCHANAN. J
In re VICTORIA WOOLLEN CLOTH PACTORY,
GRAHAM'S TOWN.
Mr. Graham moved for an order placing the
Victoria Woollen Cloth Factory (Limited), of
Graham's Town, under the Winding-up Act.
Counsel moved on the petition of John R. Wood
and Alex. Wilmot, trustees, who stated that at a
meeting of the company in February last it was
represented that the capital was insufficient, and
power was given to create additional shares, but
the result was wholly unsatisfactory. The present
capital was only £8,667, which the directors
wished to raise to £10 000, but owing to the
apathy of the public this could not be done. The
assets of the company consisted of buildings and
cloth, and the direotors were without funds to pay
debts due and falling due, and expected being
sued in respect of certain amounts. The assets
were not more than £2,000.
The Court granted an order placing the com-
pany under the Winding-up Act, and conferring
upon the official liquidator, Mr. Andrew Barclay
Shand, secretary of the Eastern Province Guardian
Company, the special powers contained in section
16 of the Act, publication to be made in the two
Graham's Town newspapers,
251
SUPREME COURT.
TUESDAY, SEPTEMBER, 8.
[Before the Chief Justice (Sir J. H. DB VlL-
LIEBS,) and Mr. Justice* Buchanan.]
JOOSTE V. KOK.
Collation — Advancement — Promissory note —
Prescription — Legitimate portion — Act 23
of 1874, sec, 2.
Although the right to the legitimate portion
has been done away with, the rule still
remains in force that advancements made
by a parent and debts owing to him but
not satisfied during his lifetime must, in
the absence of auy indication of a wish on
his part to the contrary, be collated by his
children so advanced or indebted for the
purpose of ascertaining their shares of
inheritance.
This matter was before the Court on the 20th
August last, when Mr. Juta appeared for the
applicant* and Mr. Bearle for the respondent.
On that occasion Mr. Jacobus Johannes Jooste
applied for an order requiring the respondent to
amend the liquidation and distribution account in
the estate of the late Maria Dorothea Jooste
(mother of the applioant), dated the 18th June,
1891, by expunging the item of £100 alleged to be
due by the applicant to the estate.
It appeared from the account above referred to
(hat the applicant was entitled to an inheritance
of £68 9a. 3d., but against this was brought up a
promissory note for £100, alleged to have been
made by applicant in favour of the aforesaid
Maria Dorothea Jooste on the 1st January, 1864.
The applicant denied that he bad ever signed the
promissory note. The questions to be deoided
were: (1) Was the note genuine, and (2) if so,
had the debt been barred by prescription, or was
it subject to collation.
Mr. Juta : The note, even if genuine, has been
barred by prescription. The doctrine of collation
does not apply. In any case compensation has
taken place. Counsel referred to Sande (Decision**
Frisicn, 4, 10, 1) and Voet (87, 6, 2, in medio).
Mr. Bearle : The note is dearly genuine ; in-
terest was paid on it for some time. The money
was for the advancement of applioant, and is
subject to collation. Counsel referred the Court
to the following authorities : Voet (6, 2, 61),
Van Leeuwen (B.D. Law, vol. 1, 449, 451), Burge
(Colonial Law, vol. 4, 671, 678), Grotius (2, 28, 14,
and 2, 11, 18), " Hiddingh's Executors v. Hid-
dingh's Trustee " (4 Juta, 200), and Act 28 of
1874.
The Court took time to consider, and to-day
delivered judgment.
The Chief Justice said : The applicant, as one
of the ohildren and heirs ab intestate* of the late
Maria Jooste, object* to the liquidation account
filed by the executor of her estate on two grounds.
The first is that a promissory note for £100, pur-
porting to be made by the applioant in favour of
his mother and brought into collation by the
executor, was never signed by him ; and the second
ground is that, even if the promissory note had
been duly made by him, it cannot be brought into
collation inasmuch as the right to sue thereon had
been prescribed at the time of his mother's death.
In regard to the first objection, we are satisfied
that the applicant was the maker of the note. It
is not suggested that his mother, amongst whose
papers the note was found, forged it, and it is in
the highest degree improbable that the executor
would, if he had forged it, have dated it as far
back as 1 864. The signature to the note corresponds
with the signatures to the two affidavits whioh
were made by the ap plicant for the purpose of the
present oase, and I am satisfied from the affidavits
made on behalf of the respondent that the
applicant not only made the note, but on one
occasion before his mother's death paid interest on
it, and after her death acknowledged the signature
as his own. The second objection to the account
is a more plausible one, but after a consideration
of the authorities, we are of opinion that it cannot
be sustained. A brief glance at the history of our
law relating to collation will be useful to assist
us in arriving at a decision upon the question new
raised. By the anoient civil law emancipated
ohildren had no right of succession ab intestate to
their father or other ascendant ; but the praetor, in
the exercise of his equitable jurisdiction, gave
them the bonorum possessio just as if they had
been in the ascendant's family at the time of his
death. This right, however, was conditional upon
their bringing into collation their own property,
which was reckoned as part of the inheritance, for
the purpose of dividing it between them and
their brothers and sisters living under their father's
potestat. This was the origin of the doctrine of
collatio bonorum, which was afterwards extended
by statute and by judicial interpretation far
beyond its original application. The Emperor
Pius Antoninus extended it to the dos whioh a
daughter had received from her father, and a
similar extension was made by subsequent
emperors to any substantial advancement made by
a mother as well as by a father beyond the
ordinary maintenance and education which a
parent, according to his means, owed to his
children. Justinian laid it down generally that
J
252
whatever could be reckoned for the purpose of the
legitimate portion should be brought into collation
(Cod. 6, 20, 29), and he afterwards by his eighteenth
novel (c. 6) extended the principle still further by
directing that it should apply to the testamentary
succession as well as succession ab intestate of
defendants. The right of the testator, however,
to forbid its application was expressly reserved. It
would serve no useful purpose to follow the appli-
cations and modifications of the doctrine which
have been made in the law of the Netherlands.
The 29th Article of the Political Ordinance of
1780 substantially adopts the later Roman Law on
the subject, but contains no precise statement as
to what benefits conferred on children or other
descendants must be oollated. Treatises
have been written by Dutch lawyers
upon the question whether or not a
simple donation made to a child should form the
subject of collation, and no agreement was ever
arrived at by them. Vinnius (de Coll., o. 16,
sec. 16), after discussing the question at great
length, comes to the conclusion that a simple and
absolute gift made to a child by either parent
need not be brought into collation except in two
cases, namely, where the gift was made on condi-
tion that it should be brought into collation, and
where the necessity of creating equality among the
children gives occasion for applying the prinoiple.
The conclusion is a very lame one. If the gift wss
a conditional one it could not at the same time
have been " simple and absolute." The second
exception must in many cases neutralise the rule,
for if some only of the children obtained substan-
tial gifts there must be an inequality requiring to
be redressed, and if all the children received gifts
collation would not affect the ultimate result. In
the present case there is no evidence of any inten-
tion on the part of Mrs. Jooste to make a gift
of £100. If she had intended to remit
the debt she would, instead of carefully
preserving the note, have destroyed it. The fact
that she did not sue her son does not carry the
case much further. She preserved the note, and
she may have done so, and probably did, in the
belief that when her estate came to be distributed
the amount would be brought into collation. As
the law stands, the question must after all be a
question of intention. A parent is presumed to
have intended that there shall be equality in the
distribution of his estate among his children. If
he has not sued one of his children for a debt
owing to him, he cannot be presumed to have
n tended to forgive the debt, unless he i has said so,
or done some act from which such an intention
can be interred. If he has advanced a son in
trade or business, he may have done so without
any intention of requiring payment during hiB
lifetime, but it does not follow that he intended
bis son toshare equally with his other children
without accounting for the benefits conferred on
such son. Before the passing of Act 23 of 1874,
a father was bound to leave a portion of hii
substance to his children, and was not allowed
to disinherit any of them except for certain
specified reasons. By that Act complete freedom
of testamentary disposition has been introduced,
and it is therefore more practicable now than it
was before the passing of the Act to give full
effect to a father's intentiona as inferred from hiB
words or deeds. The fourth section, however, of
the Act expressly provides that nothing in the Act
contained shall affect or alter the laws of inherit-
ance ab intcstato. Independently of this proviso it
could not have been successfully maintained that
the abolition of the right to legitimate portions
carried with it the abolition of the law relating to
collations for the purpose of testate or intestate
succession. The only effect of the Act in this
respect is to enable the Court to give effect to a
testator's intentions regarding collation in many
cases in which before the Act the Court could not
have done so. The presumption ttill remains that
a parent intended equality among his children, but
the presumption may be rebutted by indications of
an intention to the contrary, and the Court is no
longer hampered in giving effect to snch
indications. Thus, if a father during his
lifetime has made a simple and unconditional gift
to one of his sons, that in itself would be a sufficient
indication of his desire net to require such son to
collate it with the other children. But if he has
advanced a sum to start a son in business, even
without taking an acknowledgment of debt or
other security for the amount, there would be no
such rebuttal ef the presumption in favour of
equality as to dispense with the necessity of
collation upon the father's death. If, however,
the father by his will gave any indication of a
wish to dispense with collation, the Act of 1874
would enable the Court to give full effect to such
wish. Upon similar principles, if a son owes a
debt to his father on a promissory note, the fact
that no suit is brought on the note during the
father's lifetime within the period of pre-
scription does not rebut the presumption
in favour of equality. In the case of
"Van Heerden v. Marais" (Buch., 1876,92), the
Court held that all debts due by a child to his
parent and suretyship paid by the parent for the
child can be brought into collation, although such
debts may have been incurred and payments made
at a time beyond the period of prescription. That
was no doubt a case where the legitimate portion
of the child was in question, the testatrix having
died before the passing of Aot 28 of 1874, and
therefore the Court was bound to allow the child
his legitimate portion. The Court, however,
allowed prescribed debts owing to the parent to be
brought into oollation, and the rule still applies
253
that whatever advances made during the parents'
lifetime could have been computed for the purpose
of ascertaining the legitimate portion must be
collated for the purpose of ascertaining the
children's inheritances, unless the parent
wished it otherwise. The conclusion, then,
at which we have arrived is that although
the right to the legitimate portion has been done
away with, the rule still remains in force that
advancements made by a parent and debts owing
to him but not satisfied during his lifetime must,
in the absence of any indication of a wish on his
part to the contrary, be collated by his children so
advanced or indebted for the purpose of ascer-
taining their shares of inheritance. The applica-
tion to amend the liquidation account must
therefore be refused with costs.
Mr. Justice Buchanan concurred.
[Appellant's Attorneys, Messrs. van Zyl &
Buissinne; Respondents' Attorneys, Messrs.
Fair bridge <fc Arderne.]
RBGINA V. ANDBIE8 BOOYSEN.
On the application of Mr. Giddy, the venue was
changed to Prince Albert.
ADMISSION.
On the motion of Mr. Juta, Mr. William Meody
Baxter, jun., was admitted to practise as an
attorney and notary publio, the oaths to be taken
at Port Elisabeth.
GENERAL MOTIONS.
0UDT8HOOBN DIVISIONAL COUNCIL V.
RAUBENHEIMEB.
Mr. Sohreiner applied for a removal of the cause
for trial to the Circuit Court, to be held at
Oodtshoorn on September 29.
The order was granted.
ALBION MASONIC HALL COMPANY.
Mr. Juta moved for confirmation of the report
of the liquidators and for an order in terms of the
report, which recommended the acceptance of a
tender for £1,000 for the building.
The order was granted.
PETITION OF MAUDE EDITH LIPPEBT.
Transfer of landed property.
Under special circumstances leave given
to wife married out of community of pro-
2l
perty, the marital power not being ex-
cluded, to sell and give transfer, through
her agent, of settled land without con A
currence of her husband.
Mr. Searle moved for an order granting
authority to petitioner's agent, Alfred Ebden,
to act in respect of the sale of certain lots of
ground on the Glaremont Flats, the property of
the petitioner, on a power of attorney executed
without the assistance of her husband, Wilhelm
August Lippert.
It appeared from affidavit that petitioner and
her husband hid been married out of community
of property, but by the ante-nuptial contract the
marital power had not been excluded. The
husband's whereabouts was at present stated to be
unknown.
Mr. Justice Buchanan : Does not the wife know
her husband's whereabouts ?
Mr. Searle : I believe not, my lord. He has not
been heard of for a considerable time.
Mr. Justice Buchanan: I should like to be
satisfied that the wife does not knew where her
husband is at present.
Mr. Searle : Applications similar to the present
have been granted. Counsel referred to Ferreira
v. The Registrar of Deeds (6 Juta, 887) and Van
der Brock v. The Registrar of Deeds (8 Juta,
296).
The Chief Justice said that there were special
oircumstanoes which would justify the Court in
granting the order. It was the mortgagee who
had called up the bond, and Mrs. Lippert was
forced to do something. In the next place, the
trustee of Lippert's estate did not object, and
the trustees under the ante-nuptial contract con-
sented to tne order.
The order was granted accordingly.
TOWN COUNCIL OP CAPB TOWN V. METRO-
POLITAN AND 8BA POINT RAILWAY CO.
Mr. Sohreiner moved for an interdict restraining
the respondents from entering upon and taking
possession of, for railway purposes, certain pieces
of Municipal land, on one of whioh is erected the
Fish Market.
Mr. Juta appeared for the respondents.
Mr. Sohreiner said that the Court would remem-
ber the oircumstanoes of the matter, whioh was
mentioned on Thursday last, when an order was
granted staying the proceedings of the company
until Tuesday. It might be best if he shortly
sketched the exact position of affairs. In 1889
the company obtained an Act giving them power
to construct a railway from Cape Town to Sea
Point. The first section gave power to the com-
pany to work and maintain a line of railway from
254
a junction with the Western line of railway at or
near the Gape Town goods-Btatien, and thence
down the Dock-road to Sea Point. The second
section said that the railway should commence at
such a convenient junction with the Western rail-
way as was agreed to between the company and
the Commissioner of Grown Lands. The Govern-
ment taking advantage, he presumed, of the
phrase " at or near," took up the position that,
notwithstanding the Act, they would not allow
the company to come into the Gape Town goods-
yard.
The Chief Justice : Why did the company yield
to the Government? The Government is not
above the law.
Mr. Schreiner : Quite so, my lord ; that matter
has never been bronght before the Court. After some
further negotiations the Commissioner of Grown
'Lands was said to ha*»e consented to a certain
deviation of the line, which the Town Council,
however, never in the slightest degree endorsed,
and which the Commissioner expressly said must
receive the written consent of the Town Council.
Eventually certain interviews took place between
the company and a body called the Railway Com-
mittee of the Town Council, a reporting body
whose function was to inquire and then report to
the Town Council. There was on record a formal
resolution of the Town Council objecting to the
line being built on the land side of the Dock-road,
and that resolution had not been rescinded, nor
had the Council agreed to any deviation of the
line. It never appeared to the Town Council
that the large deviation from the plans of the
company would be gone on with, and so matters
rested until August 81, when the Council received
an offer of £1 per square rood for the site of the
Fish Market, and that the Council must make up
its mind on the subject by September 2. The
Town Council replied, pointing out what its legal
rights were, and that the matter in any event
could not be settled with su^h in force. The com-
pany answered that the Council must appoint an
arbitrator before Saturday, September 5, or lose
its rights ; whereupon the Court was moved on
Friday last, and an order, as he had already said,
granted.
Mr. Justice Buchanan: You say the company
has no legal right to the land, but that the Town
Council has no objection to consider the matter ?
Mr. Schreiner : Exactly so, my lord.
The Chief Justice : Is not this the main question
to be decided whether there is any right at all to
expropriate this land ? The matter of when the
compensation is to be paid is of minor importance.
Mr. Schreiner : It may be of importance in this
case. The property which it is proposed to take
is of great value.
The Chief Justice : I think we had better
decide the more important question first.
Mr. Jnta read an affidavit of Mr. John Walker*
in which it was stated that when the Governor
gave consent to the deviation now contemplated
by the company, under which the Fish Market
was to be used, the market was not the property
of the Town Council at all, but belonged to the
Government. By the plan sanctioned by the Gov-
ernor and submitted to the Council, it was
shown that the line would cut clean through the
Fish Market. In the course of interviews between
the Railway Committee of the Town Council and
the company, the committee agreed to a plan
whereby the Fish Market was arranged to be
utilised for the purposes of the railway company.
Mr. Justice Buohanan : But has the committee
the power of binding the Council ?
Mr. Schreiner : Not at all, my lord.
Mr. Juta : Well, the Railway Committee aecnu
to have power of suing in this case, at all events.
The Chief Justice: Has the Government
approved of the plan you have now in contempla-
tion, Mr. Juta ?
Mr. Jnta : Tea, they say they have no objec-
tion to it.
Mr. Justice Buohanan : And where is the con-
sent of the Town Council ?
Mr. Juta said that the land did not belong
to the Municipality at all. The first con-
tention was that, as a fact, the con-
Bent of the Council was not really requisite;
secondly, that consent, if power of consent were
possessed by the Town Council, had already been
given. Counsel went on to state that the site of
the Fish Market was absolutely required for
station purposes, and would be barely sufficient for
the requirements of the company.
The Chief Justice : What is the objection to
having the station on the land side ? Is not that
still better?
Mr. Juta said that was the original idea, but that
the Town Council objected to its being carried out.
Counsel then read the affidavit of Mr. C. BL
Solomon, secretary of the company, to the effect
that the Town Council had been informed of the
fact that the Governor had intimated his consent
to the deviation, and signified no objection, that
the land forming the site of the Fish Market was
not transferred to the Town Council till June last,
and that several members of the Town Council
were utterly opposed to the present action.
The Chief Justice said that the point Mr. Juta
had to meet was as to whether the company
possessed the consent' of the Government, if, as
counsel stated, the Fish Market belonged to the
Government and not to the Town Council.
Mr. Schreiner then proceeded to argue the case
for the applicants. Counsel read the affidavits of
Mr. Bromehead (Town Clerk), Mr. D. P. Graaff.
(Mayor), and Mr. P. J. Stigant. The point had
been urged, he said, that the Council had not taken
255
transfer of the Fish Market site till June last/ but
as a fact the property of the Fish Market was
specifically vested in the Town Counoil by the
Municipal Act parsed so far back as 1882. The
line taken by the Town Council was simply that
the company must keep to its Act. It was said
that the Government had given free consent to the
plan now proposed to be undertaken by the com-
pany, but, as a fact, consent was only given on the
understanding that the Town Council had no ob-
jection. The Government, it was true, once sig-
nified its approval of a plan whereby the company
would be authorised to construct a special road
which would take in the Fish Market, but that
plan was not before the Court Hit all. The Town
Counoil had in no way endeavoured to thwart the
( ompany. He was instructed that the Council sim-
ply desired to guard the interests of the citizens ; the
company had not approached the Council in a
reasonable way, but had suddenly changed all its
previous ideas, and demanded possession of the
land practically without notice. There was no
wish to stop the company permanently, but he
contended that the company must approach the
Counoil and obtain its consent before carrying out
any plan entailing the expropriation of the Fish
Market.
Mr. Juta said that although it was said that the
Town Council had do wish to delay the progress
of the undertaking, the facts did not bear that
construction. In April last a letter was sent to
the Town Council, embodying the plan now before
the Court, which included the taking over of the
Fish Market, and since that time the Counoil had
not communicated one word to the company.
What the company would like to do was to put the
Council in the witness-box, and ask what had
become of the report of the Railway Committee,
and why the Council kept quiet until legal title of
the Fish Market was obtained in June last. By
the company's Act the line could be deviated from
with the consent of owners of land concerned and
the Commissioner of Crown Lands. Before June
last the Council clearly did not own the Fish
Market by any legal title. The Government was
then the owner, and as such gave consent to the
company's plan.
The Chief Justice said that if all the company
asked was that it should be empowered to make a
special road, widening the Dock-road, there would
be no difficulty about that.
Mr. Juta : In that case the Fish Market build-
ings go all the same.
The Chief Justice : You mean that we shall
have to part with some wretohed shanties which
will have to go sooner or later ?
Mr. Juta said the company was hounded from
pillar to post— from the Government to the Town
Council, and back again.
The Chief Justice : If everyone's hand is against
you, it is desirable in your own interests that you
should act with all the more caution.
Mr. Juta said the Railway Committee of the
Town Council was suing in the present case with-
out the consent of the Town Counoil, and there
was a strong feeling in the Council against the
company being hampered in this way.
After further argument,
The Chief Justice gave judgment. His Lord
ship said the applicants in the ease, the Town
Counoil of Cape Town, were in lawful possession
of what was known as the Fish Market, and it
was proposed by the respondents, the Suburban
Railway Company, to encroach upon the Fish
Market for the purpose of constructing a railway-
station, and the main object of the present
application was to restrain the respondents from
encroaching upon the Fish Market for the purpose
of erecting a railway-station. Now, it was common
cause that the respondents were not entitled to
enoroaoh upon this land unless they had got the
consent of the owners, and it was urged on their
behalf that that consent had virtually been given
by a letter which was addressed by the Commis-
sioner of Crown Lands to the Assistant Commis-
sioner in Cape Town. He thought the Assistant
Commissioner was quite justified in refusing to
give confidential correspondence between him and
his chief for the inspection of the respondents, and
no consent which might have been in any way
expressed by the Commissioner to the Assistant
Commissioner would affect the present oase. It
would only assist the respondents in oase it had
been communicated to them, and there was no
allegation that any such communication was made.
Therefore it was quite clear that the
respondents must be interdicted from constructing
any railway-station upon the site of this
Fish Market. In the course of argument, it was
pointed out that on April 17 last a letter was
addressed by the Commissioner of Crown Lands
to the respondent company, to the effect that His
Bxoellency the Governor in Council had been
pleased, in terms of section 8 of the respondent
company's Act, to oonsent to a deviation of the line
from the original route proposed, on the under-
standing that the Dock-road should be widened to
100 feet throughout the entire length of it that
was traversed by the railway, and that the work
should be done to the satisfaction of the City
Engineer. It was contended that the letter
authorised the company to encroach upon the Fish
Market to the extent of some feet, and widen the
Dock-road. Now, if in the oase it were clear that
only the Fish Market was in question, he should
have been prepared to hold that that was a
oonsent to suoh a deviation as would effect an en-
croachment upon the Fish Market, but the Court
must bear in mind that the Dock-road at that point
was at that time vested in the Town Council
256
of Cape Town, that the Counoil was to all
intents and purposes the owners of the road at
that point and that inasmuch as the deviation
authorised by the Commissioner was a deviation
upon the Dock-road, which then belonged to the
Town Council, the Council was entitled to notice
before the deviation was made, and the deviation
oonld not be made without its consent. On that
simple ground he was of opinion that the authority
given by the Commissioner of Crown Lands did
not assist the respondents in any way. Even for
the purpose of making the deviation authorised
by the Commissioner on April 17, the consent of
the Town Council was still required, as that of
the owner of the road at that time. For those
reasons he was of opinion that an interdict ought
to be granted, restraining the respondents from in
any way enoroaoning or entering upon any part of
the Fish Market for railway purposes, and that
the respondents must pay the costs of the appli-
cation. Of oourse it would be competent for the
respondents at any time to bring an action to set
aside the interdict.
Mr. Justice Buchanan concurred, and said that
with reference to a remark that the respondents
were being driven from pillar to pobt, he thought
they had only themselves to thank for it. Persons
preparing a railway scheme for Parliament ought
to prepare a proper scheme and have proper plans
before doing se, and when the plans were before
the House they should be prepared to adhere
to them or only to vary them within dear
and legal limits. In that oase he thought the
respondents had totally failed to obtain from the
owners of the property their consent to a deviation.
The utmost that the consent of the Commissioner
amounted to was the consent to make a road. It
did not give the right to expropriate one inch of
the Fish Market.
The Chief Justioe said he should like to add
that he thought both sides had been very un-
reasonable. The Town Council had kept the
respondents waiting months and months. He did
not think the Town Council had treated the
respondents at all in a proper spirit, but it had the
law on its side.
[Attorneys for the Council, Messrs. Fairbridge
and Arderne; Attorneys for the Company,
Messrs. Weasels 6 Standen.]
SUPREME COURT.
WEDNESDAY, SEPTEMBER 9.
[Before the Chief Justioe (Sir J. H. DB VlL-
LIBES), and Mr. Justice BUCHANAN.]
ARMOUR V. MURRAY AND ST. LEGER.
Debt — Action for — Exception to Magis-
trate's jurisdiction — Reduction of counter-
claim — Appeal.
Sir T. Upington, Q.C., for the appellant (defend-
ant in the Court below) and the Acting Attorney-
General, Mr. Searle, for the respondents (plaintiffs
in the Court below).
This was an appeal from a decision of the
Assistant Resident Magistrate of Cape Town. A
suit was instituted by Murray & St. Leger against
Armour to recover the sum of £17 6s. Id., being
the balance of money advanced to him for the
purpose of bringing out his wife and child to the
Colony. There was no contest as to £17 6s. Id.
being the sum in dispute.
Sir T. Upington said there were two questions
to be argued. The first was of a technical
character. Exception was taken before the
Assistant Resident Magistrate to the effect that
Armour had a counter-claim against Murray &
St. Leger for wrongful dismissal to such an
amount, £42, as ousted the jurisdiction of the
Resident Magistrate's Court. That matter was
dealt with in the case of " De Jager v. De
Jager " (8 Juta, 69), when the Court held that in
order for the jurisdiction of the Resident Magis-
trate to be ousted there must be some evidence as
to the bona jide* of the counter-claim. In the
present case the Assistant Resident Magistrate
did take some evidence, that of Armour himself,
who stated that he came out under a contract, his
duties comprising bookbinding in all its branches.
He appeared to be a man of good character, and
was described by an eminent bookselling firm in
Edinburgh as sober, steady, and obliging, and
competent for the best and finest work.
The Chief Justice said that when the Magis-
trate overruled the objection Armour did not
appeal, but reduced the counter-claim to £20 to
bring it within the jurisdiction of the Court.
Sir T. Upington said that had occurred to him.
If he had been consulted he should have recom-
mended an appeal at once, instead of the reduc-
tion of the oounter-olaim.
Mr. Justice Buchanan: Supposing the Magis-
trate had given judgment for £10 on the counter-
claim, could you then have appealed ?
Sir T, Unington said no, and that he quite saw
257
the force of the objection. He had a further
point, however, that the Magistrate was quite
in error in giving judgment for the
whole amount of the debt seeing that
there had been a novation. It appeared
from the evidence that a few weeks after
Armour arrived, Mr. Harry Solomon, who
seemed to have charge of this branch of the
business of Messrs. Murray & St. Leger, declared
him incompetent for certain work. Mr. Solomon,
in his evidence, said it was then agreed that the
contract should be cancelled, but his memory
appeared to be at fault there, for a letter which
was written about that time to Armour amounted
practically to his dismissal. He went into the
serrioe of Messrs. Richards, where he was earning
£2 5s. a week, as compared with £4 at Messrs.
Murray & St. Leger. It was arranged that
Armour should commence to pay back to the
firm the money advanced for the passage of his
wife and child at 10s per month, as soon as he
could afford, and he paid his instalments in
January, February and March, 1890, but seemed
then to become irregular in the payments. In
September, 1890, the firm accepted £1 from him,
which brought the monthly instalments up to the
June previous. The case was brought in December,
1890. At that time he contended that Messrs.
Murray & St. Leger could only claim the five
monthly instalments which were due and unpaid,
instead of which they claimed the whole debt,
£17 6s. Id. There was no allegation against
Messrs. Murray & St. Leger; on the contrary,
they acted with great consideration, but he sub-
mitted that the Assistant Resident Magistrate was
in error in giving judgment for the whole of the
debt, when only £2 10s. was claimable.
Mr. Searle having shortly replied for the
respondents,
The Chief Justice, in giving judgment, said he
did not think the appeal could be sustained on
either ground. If the defendant in the Court
below had appealed as soon as his exception was
overruled, he might have had a good ground of
appeal, but he had virtually waived his right to
appeal by reducing his counter-claim and taking
his chance of getting judgment for £20. Having
failed in that, he now sought to appeal. As to the
second ground of appeal, it was clear that
a novation must be clearly proved, and could not
be presumed from loose expressions. The plaintiffs
had in effect said that so long as Armour paid his
monthly instalments they would not see, but as
soon as there was default the original debt became
due in full. The appeal must be dismissed with
costs.
Mr. Justioe Buchanan concurred.
[Appellant's Attorney, J. Hamil ton- Walker ;
Respondents' Attorney, C. C. Silberbauer],
SUPREME COURT.
THURSDAY, SEPTEMBER 10.
[Before the Chief Justioe (Sir J. H. DB VlL-
LIEBS), and Mr. Justice BUCHANAN.]
DEEDS EXAMINERS.
Appointment under Act 19 of 1891.
The Chief Justice said that under the recent
Act relating to the Deeds Office it was provided
that the Court should appoint three examiners,
one of whom was to be the Registrar of Deeds
himself. The Court would appoint the Registrar,
Mr. Hofmeyr, and Mr. Juta.
NEL AND TIBAN V. LIND AND TIBAN.
Negligence — Executors — Alleged maladmi-
nistration of estate — Damages.
Mr. Schreiner and Mr. Molteno, for the
plaintiffs ; Mr. Se*rle and Mr. Webber for the
first-named defendant, and Mr. T. L. Graham for
the second defendant.
This was an action for £6,000, damages alleged
to have been sustained by reason of the negligence
and maladministration of the defendants. The
action was instituted by Mrs. S. P. Nel (born
Tiran) and Mr. A. A. W. Tiran against Messrs. C. M.
Lind and C. F. Tiran, in their personal capacities
as executors testamentary of the late Jean Pierre
Tiran, and as tutors testamentary of the minor
children of the said Jean Pierre Tiran. The
plaintiffs are the daughter and son respectively of
the late Mr. J. P. Tiran, who died
at Oudtshoorn on the 5th November, 1881.
By his last will and testament Mr. J. P. Tiran
appointed his children his sole heirs, and the
defendants executors of his estate and tutors of his
minor children. The defendants accepted the
trusts imposed by the will, and took out letter* of
administration and of confirmation. By the terms
of the will all the landed property in the estate
(subject to the reservation of a certain portion)
was to be disposed of by public auotion within
three months of the testator's death, and the pro-
ceeds distributed amongst his heirs (seven in num-
ber). In February, 1882, the defendants sold the
property above referred to, one of the conditions of
sale being that the purchase price should be paid
in equal instalments at the expiration of six,
twelve, eighteen, and twenty-four months from
the day of sale, and that two sufficient
sureties should be provided by the purchaser
258
to secure the due fulfilment of hit obliga-
tions under the contract of sale and purchase.
The second defendant, C. F. Tiran, bought the
property for £4,600, and subsequently he and his
co-executor cancelled the sale and privately
re-sold the property to one William Knipe
Bdmeades for the sum of £5,000, payable in three
equal instalments at the expiration of two, four,
and six years from the date of the sale. The defend-
ants negleoted to require the purchaser to furnish
two sureties for the due fulfilment of his contract,
and afterwards extended the periods of payment
to four, six, and eight years respectively, from the
14th February, 1882. It was a condition of the
latter sale that transfer should only be passed to
Bdmeades when he had paid the first instalment
of £1,666 18s. 4d. with arrear interest. The
defendants, however, on the 11th September,
1888, gave Edmeades transfer, and neither then
nor at any time subsequent has any
part ef the purchase price been paid.
On obtaining transfer Edmeades passed a bond
(not containing the general clause) for £6,000,
specially hypothecating only the property trans-
ferred, and in August, 1 888, one George Mason
Edmeades agreed with the defendants to become
surety for the due performance by W. K. Edmeades
of his obligations as purchaser of the property.
The declaration alleged that the defendants as
executors acted wrongfully, unlawfully, negligently,
and in breach of their duty in accepting the
security of the said bond and the security as
sufficient. Further, that the position of the said
G. M. Edmeades was at the time when he was so
accepted as surety by the defendants one of great
financial difficulty and embarrassment, and that the
defendants were well aware of that fact.
Subsequently the estates of both W. K. Edmeades
and G. M. Edmeades were placed under sequestra-
tion as insolvent, and no portion of the purchase
price of the property was ever paid to the estate
of J. P. Tiran, but at the sale in the insolvent
estate of W. K. Edmeades the defendants pur-
chased the property for £2,500, and afterwards sold
it by publio auction for £1,600. The declara-
tion also alleged that the estate of J. P. Tiran was
put to great expense in connection with transfers,
litigation, and otherwise, and large amounts of
arrear interest due from W. K. Edmeades re-
mained at the date of his insolvency unpaid. And
that by reason of the wrongful, unlawful, and
negligent acts and omissions of the defendants,
and of their breaches of duty and maladministra-
tion as executors, the estate of J. P. Tiran had
sustained damages in the sum of £5,000 sterling,
which sum the defendants are joir.tly and severally
liable to pay de bonis propriis into the said estate
for the benefit of the plaintiffs and their minor
brothers and sisters. There was also a demand that
true, correct and separate accounts, supported by
vouchers, should be filed by the defendant* with
the Master, exhibiting their administration both
as executors and tutors, and that such accounts
when filed should be rebated.
The defendants in their plea denied most of the
allegations in the declaration, and alleged that
they had acted bona fide, with due diligence, and in
the best interests of the estate and for the benefit
of the testator's children. The first-named de-
fendant (O. M. Lind) claimed in reconvention
from the second-named plaintiff £40, alleged to
have been personally lent to him in December,
1890.
Mr. John Cairnoross, auctioneer and notary, and
trustee under the ante nuptial contract of the
plaintiff Mrs. Nel, gave evidence that in 1883 he
would not have taken Mr. George Mason Bd-
meades as surety for £6,000. He had been
executor in many estates, but would not give to any
seller such terms as payment in four, six, and eight
years. He did not know of any other case than
this in whioh transfer had been given before any
of the capital had been paid. He had investi-
gated the estate accounts in the Master's Office,
and they were for the most part unvouched and
undated. It was impossible to discover the ac-
counts of each heir ; all were taken together*
The witness proceeded to explain in detail his
criticism of the accounts filed by the executors.
By Mr. Searle; In 1882 be was not living in
Oudtshoorn, but he was there continually on
business. It was not customary to sell landed
properties without sureties. In 1882 and 1883 his
knowledge of the position of G. M. and W. K.
Edmeades was derived more or less from hearsay.
Mrs. S. P. Nel, one of the plaintiffs, stated that
with regard to the tutorial accounts, in which £530
per year was charged for the maintenance of her-
self and the other six heirs, the life lived by the
children was very simple and inexpensive. She
did not believe it cost over £20 per month to keep
the children.
By Mr. Searle : She married in August, 1888.
She and two brothers were educated at George,
where they stayed some years. She left school in
1886. After 1886 she and her brothers lived on the
property which the executors transferred to
Edmeades. Her brother had free use of the
property. There were two houses on the estate, in
one of which the family lived ; the other was let,
and the family received the proceeds. It was not
true that during her minority she constantly
applied to Lind for money. She applied occasion-
ally, but that was because her brother received all
the money, and she and her sisters had not enough
money fur olothes. She could not say how much
her brother received. She received a good educa-
tion, having been for three years at the best school
in George. She considered that £800 a year was
quite enough for the maintenance of all the
$&9
children. It was not true there was a family
quarrel. She and her brothers and sisters were on
good terns.
By Mr. Graham: She could not say if her
sohool fees at George were £16 a quarter.
Mr. B. J. Keyter, M.L.A., sworn appraiser,
deposed that for about thirty years he had carried
on business as an auctioneer in the Oudtshoorn
district, and at all his sales the custom was to
claim sureties at- land sales. He knew the oircnm-
itanees of fanning life, and thought £40 for each
child per year was sufficient payment for ohildren
brought up as the Tiran children were. In his
experience as an agent he never allowed transfer
of property before he received some payment on
account of the capital. He would never accept a
bond unless it contained the general clause.
By Mr. Searle : He considered George the best
place for education in that part of the country.
His son at sohool there cost him about £70 a year,
inclusive of sohool fees and board. He left off
business as an auctioneer about six or seven years
since.
By Mr. Graham: The deoeased, Mr. Tiran,
occupied a good position, and the school at George
was the olaas of place to which the Tiran children
would be sent.
By the Court: He could not say if George
Mason Bdmeades was a wealthy man.
Mr. Louis Nel, husband of the plaintiff Mrs.
Nel, said that living in Oudtshoorn was not dear.
He had seven children by a former wife, and kept
them on £16 a month. He considered the Tiran
children ought to have been maintained for £20 a
month, exclusive of the cost of education.
By Mr. Searle : He asked Mr. Lind for a state-
ment of the funds of the estate a week after he
was married, but he had never received any state-
ment. Mr. Lind objected to Miss Tiran's
marriage with witness. It was not true witness
was entirely without means. He was a farmer,
and was earning a living on the estate.
Mr. T. B. Herold, examiner of accounts in the
Matter's Office, deposed that up to two years ago
the Master did not insist upon the accounts of
toters or executors testamentary being vouched.
If vouchers, however, were Bent up they were filed.
Now all accounts were required to be vouched.
Mr. George Wallace, valuator to the Oudtshoorn
Divisional Council and Municipality, said the
property sold to W. K. Edmeades was valued at
£3,166. In 1884 the property was valued at
£2,960. Witness proceeded to refer to the accounts
in detail, and said that from the accounts it
appeared that the interest received in the estate
was insufficient for the maintenance and that the
remainder was drawn from the genera] funds in
the estate. The accounts, in his opinion, were
clear, and were a full statement of the affairs of
the estate.
By Mr. Sohreiner : His only connection with
the estate was that of an accountant. He knew
nothing of tbe merits of the case.
By the Court : The accounts furnished te the
Master corresponded with the books of Mr. Lind.
SUPREME COURT,
FRIDAY. SEPTEMBER 11.
[Before the Chief Jostioe (Sir J. H. DE VlL-
LIERS), and Mr. Justice BUCHANAN].
ANDERSON AND MUBI80N V. THE COLONIAL
GOVERNMENT.
Guano Islands— Right of landing — Dis-
turbance of birds— Salvage — Interdict.
Section 446 of the Merchants' Shipping Act
of 1854 (17 and 18 Vic, cap. 104) has no
application in this Colony, and the effect
of the General Law Amendment Act of
1879 was not to introduce that section.
Mr. Schreiner for the applicants ; Mr. M. Searle
(Acting Attorney General) for the Colonial
Government.
This was an application, on notice, by Messrs.
Anderson <fc Murison, merchants, of Cape Town,
to the Acting Commissioner of Crown Lands and
Public Works (Mr. Merriman), calling upon him
to show oause why the Goyernment should not be
interdicted from further restraining applicants
from recovering the residue of the cargo washed
up on Dassen Island from the wrecked steamer
Wallarah, or still to be washed up or lying in tbe
hold of the vessel ; secondly, to show oause why
it should not be declared that the applicants were
entitled to remove for their own use and benefit
any cargo washed ashore in any part of the Colony
and lawfully purchased and acquired by them.
Mr. Sohreiner read the affidavit of Mr. T. J.
Anderson, one of the applicants, to the effect that
the Wallarah was wrecked on the shores of Dassen
Island on August 1. Part of the cargo was Balved
soon after the wreck, and thereafter the wreck,
with the whole of the cargo still on board and
washed up, was sold at public auction and his firm
became the purchasers. In making the purchase
his firm relied upon the cargo washed up, and to
be washed up, as well as that still in the vessel.
After the purchase the Magnet was despatched to
the island, but the Government representative
260
there refused permission for the cargo to be col-
lected. He then waited on Captain Jackaon, the
Government agent for the guano islands,
and that gentleman stated the conditions upon
which his firm would be allowed to collect their
cargo. He said he would allow seven workmen to
land on the island, and also said he would write
deponent a letter on the subject. On August 27,
Captain Jackson wrote to him, but as that letter
laid down conditions which his firm could not
accept, it was handed to their attorneys, who were
instructed to see Captain Jackson. The latter's
conditions were that seven men would be allowed
to land, it being clearly understood that Mr.
Almeida was in charge of the island, and that no
one was to wander in the vicinity of the birds.
As the result of the solicitor's interview, Captain
Jackson on August 29, wrote to deponent, per-
emptorily revoking Ue permission previously
given. He received information to the effect that
the Government asserted an unqualified right to
prevent all persons, except Government servants,
landing on the island at all, for fear they should
scare the birds. He thereupon instructed his
solicitors to see the Acting Commissioner of Crown
Lands, but that gentleman was out of town. They
wrote to the Assistant Commissioner, however,
and after reciting the circumstanoes of the case,
the attorneys stated that the possibility of the
birds being soared away seemed remote, sinoe
there were then two separate parties
of workmen engaged on the island,
one for the purpose of collecting guano,
and the other engaged in the erection of a light-
house. His firm was perfectly willing te take the
greatest care that the birds were not disturbed, but
decidedly protested against their rights being in-
terfered with by the Government. Some days
after the receipt of his attorneys' letter the Gov-
ernment wrote that if he would respect the con-
ditions laid down by Captain Jackson permission
would be given ; further than that the Govern-
ment was not prepared to go, unless the parties in-
terested in the wreck were ready to pass a bond
for £5,000, guaranteeing the Government against
the loss of the season's guano by the birds being
scared away. Deponent wrote back, stating that
he utterly declined to accept those conditions, and
regarded the proposal that he should pass a bond for
£5,000 as preposterous, ^n September 4 a further
letter was written to Government, reporting that
the steamer Magnet was not only refused per-
mission to land his firm's workmen, but was
actually warned off from the shore. In order to
avoid a conflict, a landing was not forced, but the
warning not to approach close to the rocks was
properly disregarded. The affidavit proceeded to
state that applicant's firm was quite ready to take
all due care that their servants should confine
themselves to places where the cargo was and not
disturb the birds, but were not prepared to
boi.d for £5.000, as the Government asked. The
vessel had 4,100 tons of cargo on board when she
went ashore, and only 675 tons had been recovered.
Mr. Justice Buchanan : The Government is
willing to give you the permission offered by
Captain Jackson, or allow you to pass a bond.
Mr. Schreiner: Yes. In other words, they say
we shall not come upon the beach.
The Chief Justice : I did not read the letter so.
To whom does this island belong ?
Mr. Schreiner : I suppose it is Crown land, my
lord.
The Chief Justice : Of course, to go on the land
the permission of the owner must beiobtained.
Mr. Schreiner : Not under the Merchant Ship-
ping Act of 1864, whioh is in force here.
Mr. Searle : That Act is not in force here.
The Chief Justice : Is there no law relating to
guano?
Mr. Schreiner : No ; our law is silent on the
subject. There has been no broad objection
hitherto to people landing.
Mr. Searle : There has always been objection.
Mr. Schreiner : I am speaking of people landing
on the island generally.
Mr. Searle read the affidavit of the Assistant
Commissioner of Crown Lands, Mr. H.
MoNaughton, to the effect that when the ship
was wrecked permission was a?ked for the salving
of goods, and was granted, and for nearly three
weeks salvage went on, the remainder of the cargo
being afterwards advertised for sale by auction.
Due notice was given that no further salvage
operations could be permitted, it having been re-
presented that the nesting season was too far
advanced to permit of the birds being disturbed.
The Government was still willing to permit the
landing in terms of Captain Jackson's letter,
or te accept a bond for £5,000 as guarantee against
the loss of the season's guano yield. As a fact it was
stated in the advertisement of the sale that
arrangements with the Government would have to
be made with regard to the landing of any wreck-
age purchased. That notice did not appear in the
first advertisement, but upon representations being
made it was inserted in succeeding advertise-
ments. The fact was also stated at the sale.
Counsel also read the affidavit of Captain C. H.
Jackson, Government agent for the guano islands,
to the effect that he had refused the permission
asked by Mr. Anderson, for the reason that if men
were allowed to wander over the island the guano
yield, valued at £5,000, might be lost. If the birds
were disturbed they would desert the island,
possibly for years. Mr. Anderson had refused to
give a guarantee that the birds should not be dis-
turbed, and had treated the question of the guano
as a matter of no moment. He believed that all
the goods of value had been removed.
,26i
The affidavits of Messrs. Riley & Roe, guano
traders, were to the effect- that the birds com-
menced to arrive early in August, and would leave
if they were disturbed. The Dassen Island guano
j kid was worth over £4,000. Captain Spence, a
guano merchant for thirty years, also deposed that
birds would leave the island if disturbed while
nesting.
Mr. Anderson, in an answering affidavit, said
that he had not understood, and did not under-
stand, that he had to obtain leave to remove his
own lawful property. He did not apply to Jack-
son for leave to remove that property. He had
received information that Almeida had removed
wrecked goods surreptitiously.
The affidavit of Mr. 0. A. Fairbridge was also
read, and one by Gasiep and two fellow-workmen
lately employed on the island by Government,
who stated that for a period of three weeks they
were employed by Almeida picking up cargo, whioh
they took to Almeida's house. The birds on the
island were duikers and penguins, which were not
easily frightened, and when Almeida employed them
in picking up cargo they were not warned to keep
away from the birds. Mr. A. J. Dawson, clerk
with Messrs. W. Anderson & Co., stated on
affidavit that when he was engaged salving cargo
he had sixteen men there, who were continually
over the island, but did not frighten the birds
away.
The Chief Justice : Does the Government seek
to keep you from landing on the beach ?
Mr. Schreiner : Yes.
The Chief Justice : .Surely not. 1 he beach is
common to all. I don't think the Government
will say they prevent your landing on the beach.
It is an elementary principle of law that the beach
up to high-water mark is common to all. If that
were the only question at issue it could be dis-
posed of at once.
Mr. Searle said that was not what Mr. Ander-
son wanted. He desired permission to roam at
will all over the island.
After argument,
The Chief Justice delivered judgment. He
■aid the Court could not grant an interdict unless
the right of the applicants was clearly made out.
In the present case the applicants mainly relied
upon the Merchant Shipping Act, as giving them
the right to follow up the goods which had been
wrecked, wherever those goods might be. In his
opinion, section 446 of the Merchant Shipping Act
of 1864 had no application whatever in this colony.
The effect of the Colonial Act of 1879 was not to
introduce that section into this colony at all. The
Court must be guided in the case by the common
law of the Cape Colony. By the common law it
was undoubtedly the fact that the beach up to
lugh-water mark was open to all, and if that case
were merely a question as to whether the Govern-
2m
ment was entitled to prevent the applicants from
going up to high-water mark for the purpose of
removing wrecked cargoes, he should have no
hesitation in granting an interdict against the
Government, but in his opinion that was not
really the question before the Court. He did not
understand there was any desire on the part of
Government to prevent the applicants
from going on the beach only. The
Government was willing to give permission
for men to go to the landing place and to salve
goods, and that was a concession the applicants might
well have accepted. The letter of Captain Jack-
son was at one time withdrawn, but the Govern-
ment was now prepared to abide by its terms. In
that letter it was stated that, with refereroe to the
application to land seven men upon Dassen Island
for the purpose of diving operations in connection
with the wreck of the steamer Wallarah, provided
it was understood to be solely for that purpose and
that the operations would terminate within a
reasonable time, permission would be granted ; the
men, however, to be informed that Mr. Almeida
was in charge of the island, and had strict injunc-
tions not to allow anyone to wander in the vicinity
of the birds Should the party transgress the
regulations of the island, it was Btated that they
would have to return. Now, it might be true that
part of the cargo was valuable, but the annual
profits from the birds were very much more
valuable, and the Government was entrusted with
the duty of looking after the island and seeing that
the birds were not disturbed, and in his opinion
Captain Jackson was quite right in insisting
upon conditions of that kind before allowing
people on the island on behalf of the applicants.
The whole of the correspondence showed that the
applicants did not insist only upon the right of
remaining at the high-water mark, but also going
en the island itself, and in his opinion they could
not exercise any such right without the consent of
the owners, the Government. It might be that
there were some goods carried above high-water
mark ; if so, the applicant could bring his action
against the Government to compel them to deliver
up those goods. They could not, however, go on
the land beyond high-water mark without consent,
and in his opinion the interdict must be refused
with costs. It was only right he should add that
he thought Government ought to give some
reasonable facilities to the applicants ; for instance,
where goods were immediately above high-water
mark the Government ought to allow them to be
removed. He did not understand there would be
any objection to that course being taken.
Mr. Justice Buchanan concurred.
262
JL~.
NEL AND TIEAN V. LIND AND TIRAN.
The hearing of this case was resumed ; Mr.
Schreiner and Mr. Molteno, appearing for the
plaintiffs; Mr. Searle (Acting Attorney- General)
and Mr. Webber for the defendant Lind, and Mr.
Graham for the defendant Tiran.
Mr. G. P. Kent, bookkeeper, continued the
evidence for the defence, and said that the banking
account in the estate was frequently overdrawn.
By Mr. Schreiner : No interest was either
allowed or charged.
Mr. C. Black, bookkeeper, deposed that he had
prepared a general summary of the accounts, and
that in April last Mr. Andries Tiran, one of the
plaintiffs, expressed himself to witness as com-
pletely satisfied with the accounts.
By the Court: He could not Fay whether on that
occasion Tiran was aware of the way in which the
property had been transferred to Edmeades
Re-examined : The books balanced correctly.
Mr. C. M. Lind, one of the defendants, attorney,
auctioneer and agent, gave evidenoe that the
deceased, Mr. J. P. Tiran, bought the proper*) for
£3,000. The property was offered for sale in
February, 1882. The bidding was poor, and the
firm offered a bonus of £76 to whoever would bid
£4,600. Mr. C. Tiran bid that sum, and the
property was knocked down to him, but at once
Mr. W. K. Edmeades offered £6,000 for it, where-
upon witness at once cancelled the sale to Tiran
and sold to Edmeades, whose position was then
good. On the day of the sale witness sold
Edmeades goods to the extent of £649 on twelve
months' credit, and Edmeades duly paid for them.
It was not at all a common practice to insist upon
sureties at land sales. Several months before the
sale of this property he sold property for over
£6,000, and did not ask for sureties. He knew of
instances where property was sold at a credit of
ten years, and the credit given to Edmeades was
not excessive. Edmeades paid an exorbitant price
for the estate, whioh was at no time worth more
than from £2,600 to £3,000. Immediately after
the sale, Mr. Edmeades was asked to name his
surety, and named his brother George, whose
suretyship witness accepted. In 1888 he asked
the manager of the Cape of Good Hope Bank at
Oudtshoorn with regard to the finanoial position
of the two Edmeades, and was told that W. K.
Edmeades's bond without the general clause
and G. M. Edmeades's suretyship formed first-
rate security fer a debt of £6,000. When
he sold the property to Edmeades public
confidence in his finanoial stability was unbounded.
He was one of the wealthiest men in the district,
and witness thought he was doing well in the
interests of the estate in obtaining such a
purchaser. Edmeades was bidding at the sale,
and went as far as about £4,400. He commenced
su'ng Edmeades as soon as he stopped his payment
of interest. The brothers Edmeades afterwards
surrendered. At ro time had undue or extravagant
charges been made, but he had in all respects
treated the children as if they were his own.
Plaintiff's husband, Louis Nel, had on no occasion
demanded from witness vouched accounts in his
wife's estate. All he had asked was that his wife's
inheritance should be kept separate.
By Mr. Schreiner : He was not aware until a
few days ago that Edmeades was at the sale and
bid £4,400. He believed that £5,000 was an
absurdly high price for the property at any time.
He thought the estate was benefited by the can-
cellation of the sale to Camille Tiran. He em-
phatically denied the statement that for months
he never went near the minors during the time the
children were living in charge of \ndries Tiran.
It was only when the engagement of the plaintiff
Mrs. Nel to her present husband was announced
that there was any disagreement. When Andries
Tiran was in charge of the family and estate he
was a minor, but a minor with a long head.
Re-examined : His commission as tutor testa-
mentary amounted to about £5 or £6 a year.
Mr. M. D. Savory, manager of the Standard
Bank at Oudtshoorn, stated that in 1883 Mr G.
M. Edmeades dealt at the bank. At that time his
credit was good, His Divisional Council valua-
tion was £67,000, and beyond that he had other
properties to the ext* nt of £ 1 7,000. He dealt largely
in ostrich feathers, and had a separate feather
account, in connection with which he deposited
£1,000 per month. He had £80,000 unmortgaged
property after passing a £50,000 bond to the bank.
Mr. C. F. Tiran, examined by Mr. Graham,
related the circumstances of the sale of the
property, and said that at all times he and his
fellow-executor Mr. Lind had acted in the best
interests of the children. At the time he was re-
ceiving £450 per year for the maintenance of the
children they were costing him muoh more. When
George Mason Edmeades was accepted as surety,
witness considered him in an excellent financial
position.
Mr. Schreiner having addressed the Court for
the plaintiff,
The Chief Justice remarked that the case
appeared to be of much greater importance than
had at first appeared. The Court was the upper
guardian of all the minor*, and it might be better
if the remainder of the argument were held over
with a view to a curator being appointed to rep-
resent the minors, and the whole matter being
determined.
Counsel offered no objection to that course.
The Chief Justice appointed Mr. Tredgold
curator ad litem, and ordered all the papers to be
submitted to him. The Court would state at a
later stage when the case oould be reheard.
263
SUPREME COURT.
SATURDAY, SEPTEMBER 12
[Before the Chief Justice (Sir J. H. DB
Villi BBS, K.C.M.G.) and Mr. Justioe
Buchanan.
PROVISIONAL ROLL.
MILLS V. W. A. MABBB.
Mr. Maskew moved for provisional sontence on
two promissory notes for £78 14s. 9d. and
£67 12s. 10d. respectively, less £40 3s. 6d. paid on
account . — 6 ranted.
If ILLS V. J. C. C. REYNBKB.
Mr. Maskew applied for provisional sentence on
two promissory notes for £62 3b. 8d. and
£41 8s. 9d. respectively, le«s £40 paid on
account. — Granted.
WALK KB V. T. H. C. DICKSON.
Mr. Jones moved for a decree of civil imprison-
ment on an unsatisfied judgment for £8 ) 9s., and
£6 9s. 6d. costs. — The decree was granted, to be
suspended on condition that defendant pay £5 per
month, the first payment to be made on the 1st
October next, and an equal sum on the first day
of every succeeding month.
BREDA'S ASSIGNEES V. H. B. EDWABDB.
Mr. Maskew applied for provisional sentence on
an account for £146 15s. 3d., for goods sold and
delivered. — G ranted.
SOLOMON V. WOOLF.
On the application of Mr. Sohreiner the rule
nisi granted in this matter on the 26th ulto, was
discharged with costs. Woolf not having com-
plied with the order of Court made on that
occasion.
WOODMAN V. BOBINSON.
Master and Servant — Alleged wrongful dis-
missal — Damages — Disobedience of ser-
vant — Justifiable dismissal.
Mr. Graham for plaintiff ; Mr. Juta for defend-
ant. This was an action for damages for wrong-
ful dismissal. The declaration set forth that the
plaintiff entered into a contract in London with
the defendant, under which she was to oome rat to
the Gape as cook at a salary of £60 per annum.
In terms of this contract she came out in the
Dunottar Castle, arriving here on the 28th April
last. In the agreement it was stated that if
she remained in the service of the defendant
eighteen months her passage money would be paid
bank te England. The plaintiff refused to sign the
new agreement drawn up in Cape Town, and at
Wynberg she was summarily dismissed without
notice or payment. On the 1st May the defendant
oaused her to be placed under arrest, and for this
she claimed damages estimated at £160. The
plea admitted the contract, but denied that there
was any agreement regarding plaintiffs passage
back to England, and further set forth that
while on board ship she conducted herself
in a grossly rnde, insolent, and improper manner ;
further, that she had refused to obey the lawful
orders of the housekeeper, incited other servants
to do the same, and olaimed the right to go in and
out of the defendant's house whenever she thought
proper.
Miss B. J. Woodman deposed that she was
engaged as a cook in London at a salary of £60
per annum, and it was a condition of the agree-
ment that her passage was to be paid back if she
remained in her situation for eighteen months.
She arrived here by the Dunottar Castle, in oom-
pany with two other servants who were engaged at
the same time. On landing they went to Mr.
Reid's office, and after waiting two hours were
called into a room and asked by defendant to sign
an agreement, but they refused, as it was different
to the one they signed in England. They went
to the defendant's house at Wynberg and the
housekeeper (Miss Taylor) told them they were
not to take off their things before seeing defendant.
Witness had a long interview with him. but still
declined to sign the agreement. She was not
allowed to work, and as she was not employed
she asked the defendant to pay her the eighteen
months' wages which he refused to do. On
Friday the defendant brought a policeman to
the house, who searched her boxes and
conducted her to the railway-station, whence she
oame to Cape Town, and took up her residenoe at
the rooms of the Young Women's Christian
Association, paying 8s. 6d. per day. For a short
time she held a situation at the Dean's at a salary
of £2 per month. She never behaved badly on
board ship, and never refused to obey the orders of
defendant or the housekeeper.
Cross-examined : She was never told in England
that she would have to sign a new agreement here.
On board the ship she never stopped on deck after
the hours fixed by the defendant, neither did she
behave indecently, nor declare that she would
order goods as she thought proper. She did
say that if the housekeeper came into the
larder she would insult her. At that time both
264
Mr. and Mrs. Robinson were ill in bed. On the
Friday she was ordered to leave the house, and on
refusing, was eonduoted by a policeman to the
station in a cab. She left the service of the Dean
six weeks ago, and had tried to get another situa-
tion without avail.
Re-examined : She was required to leave the
deck at six o'clock every evening, which she
declined to do. She was always prepared to do her
duty as cook.
Miss Annie Bnever deposed that she entered into
a similar contract to that made with the previous
witness. On the voyage out the plaintiff conducted
herself in a proper manner. She refused te sign
the new contract, as one had already been signed
in England. At Hawthorndene she heard the
housekeeper tell the plaintiff she must not com-
mence her work. She saw the policeman come to
the h^use and search the plaintiff's boxes. He
told plaintiff if she did net look sharp he would
take her. Plaintiff told the housekeeper she was
quite willing to do her duty as cook.
Miss Anne Old deposed that she was engaged in
London as parlourmaid, and came out on the
Dunottar Castle in company with the plaintiff, who
behaved herself properly during the voyage. She
heard the housekeeper tell plaintiff that, under
orders from the defendant, she was not to com-
mence work. She was present when the boxes
were searched, and when the plaintiff and the
policeman left the house her impression was that
she was being . conveyed to gaol. The defendant
was willing and did make alterations in the agree-
ment to suit the objections of the previous witness
and herself.
Mrs. M G. Y. Lancaster deposed that phe kept
a registry-office It would be a difficult thing to
find a person a situation as cook at more than £2
per month. Hotel cooks Commanded higher wages.
For the defence was called Mr. J. B. Robinson,
who deposed that he enraged the plaintiff in London,
but in the agreement it was not stated that her
passage would be paid back if she remained in her
situation eighteen months. Two days after sailing
from Dartmouth the plaintiff refused to leave the
deck at proper hours. He told her she was a very
insolent woman. On several occasions she mis-
conducted herself with men and was the talk of
the ship. Mrs. Robinson was quite upset in con-
sequence. On arrival at Cape Town plaintiff
objected to all the clauses of the new agreement
and would not sign it. The matter of the agree-
ment was again discussed at Wynberg, but no
amicable conclusion was arrived at. She declined
to take orders from the housekeeper, demanded to
leave the house and return when she liked, and
intimated that all the witness had to do was to pay
the money. He offered to modify the terms of the
agreement, but of no avail. The servants came
0ewn very late in the morning, and though he had
a large staff it was half-past eight before any-
thing was done by them. On the third day
he got up and found the defendant
cooking omelettes for a man to whom she had
taken a fancy. He remonstrated with her, and
after telling her she was a bad woman, and
utterly demoralising the household, said if she did
not leave the house he would send for the police.
Finding her in a room drinking brandy and soda
with a male friend, he sent for the police, and she
went away with a policeman to the station with
her luggage. He never gave orders for her boxes
to be searched.
Cross-examined : Miss Taylor had gone home.
He was actually positive that the plaintiff grossly
misbehaved herself indiscriminately on board the
steamer, with passengers and sailors. He did not
know that he had the power to dismiss the
plaintiff on arrival at Cape Town. The agreement
he asked her to sign here was virtually similar to
that signed in England. He never asked the girls
to leave the deck at six p m. ; ten o'clock was the
proper hour. The servants at Hawthorndene
drank so much of his wine that he had to keep it
looked up now. The parlourmaid and housemaid
were instigated by the plaintiff to disobey orders.
On the steamer she refused to retire to her cabin
at proper hours, to take her food in a certain
portion of the ship, and to take the orders of the
housekeeper. The plaintiff distinctly under-
stood, when in London, that she would
be under the orders of Miss Tayler, who
remained in his employ for a month
or two. He never gave orders that the plaintiff
was not to commence work because she would not
sign the agreement. She positively would net
work. The housekeeper had to do the cooking, as
the family was starving. He sent for a policeman
with the intention of giving the plaintiff in
oharge if she did not leave the home.
Mrs. E. R. Robinson deposed that during the
voyage out she had occasion to speak to the plain-
tiff about not retiring below at proper hours, and
her retoit was that she would do as she liked.
She rushed into witness* cabin and talked very
loudly, refusing to leave when requested. She
corroborated all that her husband had stated
regarding what took place at Hawthorndene. The
plaintiff did not work, and the housekeeper had to
do the cooking.
Mr. J. A. Reid deposed that the plaintiff and
two other girls came to his office, but they all
refused to sign the contract he had drawn up.
The contract, with the exception of the last clause
regarding the withholding of half the wages to
cover the passage-money, was virtually the same
as that entered into in England.
Police-constable E. A. Manwell deposed that
at the request of the defendant he went to the
house with fche intention of arresting the plaintiff
r
265
if ihe did not leave in ten minutes. He received
no instructions from the defendant t) search the
boxes, but simply looked into one trunk. He
accompanied her to the station in a cab ; she was
not a prisoner, and he simply drove down with her
to oblige her. She was very friendly on the
journey. He did not know what put it in his
head to search the boxes ; he had only been in the
foroe about * week. The plaintiff handed her
keys to him willingly.
By the Court : She was free to go by her own
conveyance if she chose.
The defence being closed, the Court was
addressed by Mr. Graham.
The Chief Justice, without calling upon Mr.
Juta, said that the case had been very fairly and
ably argued by Mr. Graham, but he had not
succeeded in cjnvincing the Court that this was a
case in which the judgment should be for the
plaintiff. He quite agreed with counsel that if
the defendant had dismissed the plaintiff merely
on the ground that she had refused to sign the
agreement the dismissal would have been a wrong
one, because the agreement submitted to her
contained a clause which did not appear in the
original contract entered into in England. At the
same time he was satisfied that this clause was not
the real difficulty she had before her ; her real
objection was to taking orders from the house-
keeper as well as from Mrs. Robinson, and
•bjecting to being debarred from leaving the
house when she chose. In her cross-examination
she admitted that she insisted upon leaving the
house whenever she thought proper. While he
did not think she was even bound to sign the fresh
contract, he was also of opinion that she never
intended to do so. She had told the defendant
since she entered his service that she definitely
refused to take orders from the housekeeper, and
claimed the right to leave the premises whenever
she liked. In his opinion, this was a claim she
could not establish. If Mrs. Robinson could give
orders to the plaintiff then the housekeeper,
acting for her, cojld do the same. If the plaintiff
refused to take orders from the housekeeper, he
thought that was sufficient ground to justify her
dismissal. Moreover, in his opinion, a domestic
female servant in this country had no right to
leave the premises of her employer whenever she
deemed necessary. In his evidence, the defendant
stated that he three times sent for the defendant,
bat she refused to wait upon him. This was a
distinct disobedience of orders. It might be
looked upon as a trivial matter, but taken in
connection with her previous statement, that she
would take no orders from the housekeeper, he
considered that this was a disobedience of lawful
orders which justified the defendant in dismissing
her. Much had been made of the circumstanoe
that this gi'l was an unprotected female, who
had just arrived in the Colony, and no doubt
there was some truth in that, but at the same
time she bad the remedy in her own hands.
Mr. Robertson said if she would only agree to the
other terms of the agreement he would not insist
upon the fulfilment of the last clause. She re-
fused to do this, and might have had a
comfortable home, but through her own act she
brought upon herself her dismissal. Under all
the circumstances, there was no other course open
to the Court than to give judgment for the de-
fendant with costs.
Mr. Justice Buchanan concurred.
The Chief Justice said as to the oharge of false
imprisonment^ he did not believe that this woman
ever was under arrest. The policeman said he
would have taken her into custody if she had
refused to leave the premises. She went with her
own consent to the railway- station in company
with the constable. As to the searching of the
box, he considered that the constable had some-
what exceeded bis duty, but he was quite satisfied
that the defendant did not authorise him to take
that step.
[Plaintiff's Attorney, H. P. du Preez ; Defen-
dant's Attorneys, Messrs. Reid and Nephew.]
REHABILITATIONS.
The following applicants received their rehabili-
tation : Charles W. Smart, Marthinus Beyers,
G. J. van Zy], and P. M. Duckitt.
GENERAL MOTIONS.
HEINEMANN V. HEINEMANN.
Mr. Juta moved for an order making absolute
the rule ni$i for the dissolution of marriage sub-
sisting between the parties, by reason of the res-
pondent's failure to obey the order of Court for
restitution of conjugal rights.
The order was granted.
In re THE ALBERT DISTRICT GOLD-MINING
COMPANY.
Mr. Searle moved for an order in terms of the
official liquidator's report, presented to the Court
on the 6th August last, and for direction as to
the allowance to be made to him for his services.
The Court appointed Mr. R. Hoffa in the room
of Mr. Michau and directed that the latter should
receive five per cent, upon hi* collections,
266
BBASCH V. BRASCH.
Mr. Jata applied for an order making absolute
the rule nisi for the dissolution of the marriage
subsisting between the parties, by reason of the
respondent's failure to obey the order of Court for
restitution of conjugal rights.
The order was granted, the wife to have the
custody of the child.
IN THE ESTATE OF THE LATE WILLEM J VAN
ZYL.
Mr. Juba moved for an order giving authority
to the executor dative to sell oertain half-
share in a portion of the farm Zandvliet,
situated in the district of Robertson, in which
three minor heirs in the said estate are interested.
— Granted.
BOSS V. BOSS.
Mr. Giddy moved for an order making absolute
the rule nisi admitting the applicant to sue in
forma pauperis in an action against his wife for
divorce. — Granted.
In re THE CAPE STOCK-FARMING COMPANY
(LIMITED).
Mr. Schreiner made application for the rescind-
ing of the order granted by the Court on the 31st
August last, placing the said oompany under the
operation of the Winding up Act of 18B8, by
reason that certain facts and circumstances, neces-
sary and material for the consideration of the
Court, were not disclosed on the ex parte appli-
cation.
Sir T. Upington, on behalf of the respondents,
applied for a postponement, which, after argu
ment, was agreed to, the matter to come on again
on Tuesday week. In the meantime no acts of
administration were to be undertaken by the
liquidator, nor was he to part with any of the
Company's assets.
EATON V. EATON.
Mr. Tredgold moved for an order appointing
counsel to act for the plaintiff at the trial of the
raid cause, which has been removed to the Queen's
Town Circuit Court.
The Court granted the applicition and ap-
pointed Mr. V. Sampson counsel.
BURN V. BURN.
Mr. Tredgold moved for an order removing the
said cause for trial at the Circuit Court to be held
at Oudtshoorn on the ?9th instant.-. 3 ranted.
PETITION OF MAODALENA J. GEDULD.
Mr. Tredgold moved for leave to sue in forma
pauperis in an action against her husband for
divorce by reason of his adultery. — Granted.
IN THE ESTATE OF THE LATE ISAAC JDKKIE,
Mr. Joubert moved for an order making ab-
solute the rule nisi for the payment to Candassa
Adams and otherB the amount of inheritance
lodged with the Master out of the said estate to
the credit of the children of Hes&ie Adjam, all of
whom are dead leaving no issue. — Granted.
IN THE ESTATE OF THE LATE HEBMINA M.
OVERBEEK.
Mr. Juta moved for an order making absolute
the rule nut for the payment in aid of the support
of Albertina Overbeek and her ohild the inheri-
tance devolving upon Gerhard B. Overbeek and
his wife, the said Albertina Overbeek, as heirs ab
intestato in the estate. — Granted.
PETITION OF MABIA J. WIDDOWSON.
Mr. Graham, on behalf of the petitioner, moved
for a rule nut calling upon her husband, John T.
Widdowson, to show cause why she should not be
admitted to sue him in forma pauperis in an action
for debt under the terms of a deed of separa-
tion. — Granted.
SUPREME COURT.
MONDAY, SEPTEMBER 14.
[Before the Chief Justice (Sir J. U. DE
VlLLIEHS, K.C.M.G.), Mr. Justice SMITH,
and Mr. Justioe Buchanan. |
LANGFOBD V. MABAIS.
Pouudmaster — Divisional Council — Civil
Commissioner — Ordinance No. 16 of 1847,
sec. 18 — Damages for alleged contraven-
tion — Exception to summons — Act 1 of
1857 and Act 40 of 1889, sec. 216—
Appeal.
The Acting Attorney-General (Mr. Searle)
appeared for the appellant, and Mr. Schreiner for
the respondent.
This was an appeal from the High Court of
Griqualapd West, and raised a point of some im-
?67
MS.
portance to Divisional Councils and poundmasters,
namely, whether section 18 of Ordinance 16 *f
1847 had been repealed by Act 40 of 1889.
The facte of the cafe are as follows: The
plaintiff (present respondent) sned the defendant
before the Resident Magistrate at Kimberley for
damages sustained by reason of his neglecting to
send certain notices to the Civil Commissioner, as
it was alleged he was required to do by section 18,
Ordinance 16 of 1847. The defendai.t excepted to
the summons on the ground that the section in
question had been repealed by Act 1 of 1857. The
exception was sustained by the Magistrate, and the
plaintiff appealed to the High Court. The latter
Court held that the exception, as based on the Act
of 1867, was technically bad, as that Act had been
repelled by Act 40 of 1889; but that section 5 of
the Act of 1867 had been substantially re-enacted
by section 216 of the latter Act. The Court also
held that this section did not repeal section 18 of the
Pound Ordinance, requiring the notices to be sent
to the Civil Commissioner. It merely enacted
that the method of publication should be as
directed by the Divisional Council, anything in
section 19 of the Pound Ordinance notwithstanding,
and that the effect of the two sections taken to-
gether seemed to be that the notices should still
be forwarded by the poundmaster as directed by
the Pound Ordinance, and should then be pub-
lished in such manner as the Divisional Council
should direct. The case was therefore remitted to
be heard on its merits, leaving the plaintiff to
prove that he had sustained damage by reason of
the alleged neglect of the defendant. From this
decision the respondent (present appellant) now
appealed.
Mr. Searle, in support of the appeal, contended
that it was clearly the intention of the
Legislature to repeal section 18 of Ordinance 16 of
1847 by section 216 of let 46 of 1889.
Mr. Justice Smith : Are general instructions
issued by Divisional Councils for the direction of
poundmasters ?
Mr. Searle : There is nothing on the record to
show that such instructions have been issued, but
the Court weuld assume that such instructions
have been given, and that poundmasters acting
upon them have done their duty.
Mr. Schreiner : There is nothing in Act 40 of
1889 to show that poundmasters are freed from
their obligation to send notices to the Civil Com-
missioner. By the Act of 1889 the Civil Commis-
sioner retains close connection with the Divisional
Council, of which he was to be ex (fficio chairman.
The only difference between the earlier and later
Acts is that whereas in the former notices were
to be sent in a form approved by the secretary to
Government, in the latter they were to be in a
form approved by the Divisional Counoil. Sec-
tion 18, Ordinance 16 of 1847, is the public's char-
ter, and it was never intended by the Legislature
to repeal it by section 216 of Act 40 of 1889.
The Chief Justice, in giving judgment, said that
the summons in the case claimed damages sustained
by the plaintiff by reason of the defendant con-
travening section 18 of Ordinance 16 of 1847, in
that he did wrongfully and unlawfully keep in the
pound certain mules without issuing the advertise-
ment required by the section. There was no
allegation in the summons that the Divisional
Council had failed to give directions to the pound-
master in terms of section 216 of the Act of 1889.
If there had been such an allegation the Court
might have been induced to inquire what the state
of things was supposing the Divisional Counoil
failed to make any regulations whatever. It was
alleged, though not proved, t* at there were actually
regulations in force, but of what nature did not
appear, and «-f course the Court must dismiss that
from consideratio n. Under section 213 of the Act
of 1889 the general management and control of
every pound, other than pounds in municipalities
or corporate towns, was vested and conferred upon
the Council of the division in which such pound was
sit uated. Clearly, therefore, there was an inten-
tion to divest the Government and the Civil Com-
missioner, as such, of all powers which they
formerly had under previous Acts. Now, the
question to be decided was whether the 18th
section of the Ordinance of 1847 was still in force,
or was virtually repealed by section 216
of the Act of 1889. In his opinion
the two sections were wholly inconsistent
with each other. The 18th section re-
quired that an advertisement should be pre-
pared and forwarded to the Civil Commissioner
of the division in order for the publication thereof ,
as in the next succeeding section provided. The
next succeeding section provided for a certain
form of publication, but that was entirely repealed
by section 216 of the Act of 1889. The publica-
tion was therefore entirely dispensed with by the
subsequent Act. By the Act of 1889 the adver-
tisements were to be published, and the form of
advertisement approved by the Divisional Council.
In his opinion the Divisional Council of every
division was entitled to direct the form of the
advertisement, and was not bound by section 18
of 1847. Under those circumstances he thought
the exception taken in the Magistrate's Court was a
right one, and the appeal must be allowed with
costs.
Mr. Justice Smith was of the same opinion, and
said that clearly divisional pounds were under the
control of the Divisional Councils.
Mr. Justice Buchanan also concurred.
[Appellants' Attorneys, Messrs. Tredgold,
Mclntyre and Bisset; Respondents' Attorneys,
Messrs. van Zyl & Buissinne.]
268
RBQ1NA V. BLUMENTHAL.
DiHinond Trade Act No. 48 of 1882— Con-
travention — Conviction — Evidence of trap
— Credibility — Appeal.
Sir T. Upinjrton, Q.C., for the appellant ; Mr.
Giddy for the Crown.
This was an appeal from a sentence passed by
the Special Court at Kimberley, under the
Diamond Trade Act, No. 48 of 1882, whereby the
appellant was convicted and sentenced to seven
years' imprisonment.
Counsel said he must admit that the appeal was
based on fact, but as pointed out in the case of
" Hoole's Trustees v. Hudson, Vreede & Co." (1
Appeal Cases, 142), the Appeal Court might
overrule the judgment of the Court below on a
question of fact, under certain circumstances.
The case was a somewhat peculiar one. A woman
was employed by the Detective Department for
the purpose of trapping an illicit diamond dealer,
not being Blumenthal. For that purpose she sent
for a man named Green, who appeared to have
been a go-between for the individual the woman
wished to get hold of. Green came to the
woman's house, and wished her to go
with him to the intend td princpal. She refused
to go, because detectives were in the
house, and she wished to get the
man to come to her house. Then the man Green
went to the intended principal, but returned with
the information that he was not at home, but that
he knew of another man who would buy. Then
occurred a most remarkable thing in the evidence,
that he (counsel) was not able to fathom. While
Green was there, according to the evidence of the
detective (Brink) and the woman, she communi-
cated with Brink, and asked if she might go,
though there was nothing in the world to show
that Green was not there the whole time, and
heard all. At any rate, she did go out with Green
to the house of Blumenthal, where a transaction
took place. Blumenthal said that he wai not con-
cerned in the transaction at all, but that Green
came there and asked to be allowed to use a room
in the house for the purpose of a transaction with
the woman. He refused at first, but afterwaids
allowed Green to use the room. The woman said
positively that the person who bought the
diamonds was Blumenthal, but Green contra-
dicted her, and said that Blumenthal had nothing
to do with it. The diamonds were found in a
common passage between the house of Blumenthal
and that of a person employed at the De Beer's
Mine.
The Chief Justice : — Then it is a mere question
whether the Court believes the evidence of the
woman, or of Green ?
Sir Thomas Upington : — And whether there
was such a mistake in dealing with the credibility
of the witnesses as would justify the Court in
reversing the decision arrived at.
The Chief J ustice : — I have read over the
evidenoe, and as far as I can judge, the woman's
evidence is corroborated in every particular by the
detectives and all the circumstances ; and eren
Green himself admits that Blumerthal connived
at the sale.
The Chief Justice said he was satisfied that the
appeal could not be allowed. The evidence
clearly showed that the appellant was guilty of the
offence. It was not only a question of credibility,
but also of probability, and all the probabilities of
the case were in favour of the evidence given by
the prosecution. The appeal must be dismissed
with costs.
Their lordships concurred.
[Appellant's Attorney, Gus Trollip ; Attorneys
for the Crown, Messrs. Keid & Nephew ]
STANDARD BANK V. WYLIE.
Mr. Schreiner moved for final adjudication of
the respondent's estate.
Sir T. Upington appeared to oppose, and read
respondent's affidavit, dated at Kimberley on
September 11, in which it was stated that he
owed the bank £420, for which he had pledged
certain shares, valued by a broker at £110
together with certain Waterval shares the value of
which was not ascertainable. This sum, deducted
from the £460 stated by the bank to be the
debt with interest, reduced his indebtedness to
£840. Two months ago he wrote to his mother in
Scotland, requesting her to send him
£800 for the purpose of paying all
his creditors except the bank, and promis-
ing not to use the money except for that
purpose. The sum of £297 was cabled to him
through the Standard Bank instead of Do Beer's,
as he requested, and the bank had stuck to the
money. If the bank should be held legally
entitled to appropriate the £297, it was not
entitled to apply for sequestration of the
defendant's estate. His other creditors were
pressing him, but if the bank kept the £297 he
could not pay them at once.
The Chief Justice said it was clear the
respondent was not able to pay his debts, and the
only question was as to whether it was for the
benefit of the creditors that the estate should be
sequestrated. He thought it was, for if it were not
the bank would stick to the £297. Final adjudica-
tion would therefore be granted, costs to come out
of the estate.
269
REHABILITATION.
On motion from the bar, the rehabilitation of
the following insolvent was granted: L. J. G.
Botha.
MSIRING Y. GRUNDLINOH'S EXECUTOR.
Mr. Jnta for the applicant; Mr. Searle for
respondent.
Mr. Jnta moved for an order calling upon the
respondent to show cause why he should not
lodge with the Resident Magistrate of Ondtshoorn
a foil account of his administration of the estate,
and why he should not be held to have forfeited
his executor's fees by reason of his delay.
The Court ordered the accounts to be filed
within six weeks from this date, respondent to
pay the costs of the present application.
THE UNION BANK, IN LIQUIDATION V.
WATSON'S EXECUTORS.
Company — Bank in liquidation — Deceased
shareholder — Contributories — Liability of
executors — Payment of calls de bonis
propriU — Condictio indebiti — Ordinance
No. 104, sees. 30 and 32 — Taylor v.
Taylor (L.R. 10, Eq. 477) discussed.
On the 12th March last the Court granted a
rule nisi calling upon the executors to show cause
why they should not be ordered to pay de bonis
propriis the amounts which they had paid the
heirs. To-day the Court made the rule absolute,
and delivered the following judgments :
The Chief Justice said: At the date of the
order for the winding up of the Union Bank the
M Estate of Thomas Watson (care of W. A.
Currey, Cape Town) " was included in the list of
shareholders of the bank in respect of fifty
shares. W. A. Currey is the secretary of the
General Estate and Orphan Chamber, and one of
the respondents. In framing a list of ©en-
tributories the applicants, as official liquidators,
adopted this list, and it is not denied by the
sespondents that they, in their capacity as
executors of Watson's estate, have been duly
placed upon the list of contributories. They have
acknowledged the liability of the estate, and,
consequently, their liability as executors, by pay-
ing to the applicants such assets of the estate as
came into their hands after the date of the wind-
ing up. The amount of the call, however, is far
in excess of the sum paid over, and, in answer to
the applicant*' demand for the balance of the call
the respondents say that they have no further
2n
assets of the estate in their possession. They do not
deny that they have paid out to the heirs of Watson
much more than would suffice to meet thecal], and
the question to be determined is whether the
answer is sufficient ; in other words, whether the
respondents are relieved from paying the calls by
the fact that they have distributed the assets of 1 I
the estate not only among the creditors, but among j f
the heirs of the deceased. If they are not so
relieved they must pay the calls de bonis propriis ;
if they are so relieved, their liability must be con-
fined to such assets of the estate as may still oome
into their hands. The Union Bank was a joint-
stock company, with unlimited liability, and the
7th article of its deed ot settlement recognises the
right of an executor to hold, in that capacity, the
shares of a deceased person whose estate he has
been appointed to administer. The respondents
in the exercise of that right continued, in their
capacity as executors, to hold Watson's fifty
shares ; they paid calls on them, and they received
the dividends from time to time awarded on
these shares. The partnership which had been
commenced in Watson's lifetime oontinued
after his death, the executors being entitled,
in their oapacity as such, to all the
benefits aooruing from the continuation of such
partnership. Being entitled to the benefits they
were also liable to the burthens arising out of their
position as shareholders. The creditors of the
bank could make no claim upon the estate without
first exoussing the bank, and so long as the bank
satisfied its liabilities there would be no occasion
for creditors to excuss the bank. The list of share-
holders was duly registered, and creditors dealing
with the bank and finding that the estate
administered by the respondents still retained the
shares, would be justified in assuming that the
respondents were properly retaining the shares as
part of the estate. They certainly weuld not be
induced to file their claims against the estate. I
fail to see, therefore, what bearing the 80th and
82nd sections of Ordinance 104, which are so much
relied upon on behalf of the respondents, have upon
the present case. It is quite true that under
the 80th section they have given notice to
creditors of the deceased to lodge their
claims, and that under the 82nd section
they have paid all claims duly lodged with
them. These are not the payments which are now
questioned. They have also paid the heirs with
the knowledge of a continuing liability towards the
creditors of the bank. That knowledge did not
prevent them from succeeding in their action
against some of the heirs to recover back a pro-
portionate share of the inheritances which had
been paid to them. They knew that the shares
still belonged to the estate, but it was doubtful
whether a call would ever be made in respect of
these shares, and therefore it could not be saic|
i
270
that they knowingly paid the heirs what was not
owing to them. Accordingly the Court, upon the
authority of Voet (12, 6, 6), held that they could
sue the heirs by meant of the ccmdictio indebiti.
But it does not follow that by our law — whatever
the rule of the English law may be — the executors
are relieved from responsibility towards the credi-
tors of the bank. The executors would have been
justified in refusing to pay out the inheritances
until the partnership of the estate with the ether
shareholders of the bank had been put an end to,
and the liability, if any, arising out of it had been
ascertained. They have taken the risk upon
themselves of paying the heirs, and what they
have so paid they may recover back, but are they
to be relieved from their personal responsibility
for any deficiency (not exceeding the assets avail-
able for distribution among the heirs) which they
cannot recover back from the heirs? In my
opinion the responsibility which formerly attached
to the heirs now attaohes to the executor who
administers and manages the estate on behalf of
the heirs. Just as the heir who, after adiating
with benefit of inventory, paid out legaoies before
he had satisfied the debts would formerly have
been liable de bonis propriis to the creditors, so the
executor who pays out the inheritances without
providing for any continuing liability of the
estate incurs a personal liability to the creditors.
Such a continuing liability existed so long as
Watson's executors, taking the place of the heirs
as the representatives of his persona, remained the
holders of the shares. In the cases of " Brink v.
Esterhuyzen" (1 Menzies, 478), and " Kotze' v.
Mosfcert" (Buchanan, 1869, p. 199), which have
been relied upon by the respondents' counsel, there
was no continuing liability of the estate to the
knowledge of the executors, nor is it quite dear
that in either case the executors had paid any
portion of the assets to the heirs of
the deoeased. As to the contention that
an executor being merely a mandatory
for the heirs does net render himself personally
responsible except when he has contracted in his
own name, a similar argument was advanced but
overruled in this Court in the case of u Norden v.
Brink " (8 Menzies, 408). As between the exeoutors
and the heirs he acts in a certain sense as their
mandatory, but towards the rest of the world he
occupies the position of legal representative of the
deceased, with all the rights and obligations
attaching to that position. One of these obliga-
tions is to provide, to the extent of assets in his
hands, for payment of ^U_continnin g liabilities of
the estat e^a nd if he pl aces it o ut of his own power
t o fulfil this obligation in hi a Representative
ca pacity, he must b e held personally liable for The
consequences. I have not thus far referred to the
law of England, but I am not satisfied that it
differs from ours upon the question now under
consideration. It would appear that "the condictio
indebiti is allowed by our law to executors against
heirs, under circumstances which would preclude an
English executor from recovering back moneys paid
to legatees, but this is mainly owing to the differ-
ence in the relative legal position of our heirs and
English legatees. As regards the liability of
executors towards creditors of the estate, the
difference does not appear to be bo great. In the
case of" Taylor v. Taylor" (10 L.R. Eq., 477), the
question was whether the executors ef a deceased
shareholder in a banking company which was
wound up after the testator's death and the dis-
tribution of his assets were liable to pay, in satis-
faction of the calls, a sum which they had already
paid to a legatee under the testator's will. Counsel
for the executors argued, as was done in this oase,
that the liability was only contingent, inasmuch as
the bank was a going concern at the time of the
testator's death, and that an executor cannot be
called upon to keep his testator's assets for the
purpose of paying a contingent debt; but the
Master of the Rolls held that the executors had
committed a breach of trust in paying the legacy
without providing for the liability attaching to the
testator's estate at the time of his death in respect
of the shares and were liable to pay
the calls. That case was decided in 1870,
and therefore after the passing of Act 22
and 28 Vict, o. 85, the 29th section of
which contains provisions in some respects similar
to the 82nd section of our Ordinance. The case
does not appear to have been since overruled, and
is referred to in a footnote to the latest edition of
Lindley's Company Law (p. 818), as an authority
for the view "that executors of deceased
shareholders in going companies cannot safely pay
legacies without providing for future calls." The
case was also cited without disapproval by Jessel,
M.R., in the course of the argument in " Jervis v.
Woolferstan" (L.R. 18, Eq. 18). In the latter
oase there was no question as to the liability of
exeoutors in respect of shares standing in the
name of the testator. The shares appear to have
been transferred by the testator during his life-
time to trustees of his marriage settlement
in trust for his wife for life, with remainder to
his children. After the residuary legatees had
been paid a call was made in respect of the
shares, and the trustees having paid the
calls were held to be entitled, as creditors of
the estate, to a refund from the residuary legatees.
" I take it for granted," said the Master of the
Rolls, " that no proposition is better settled than
that residuary legatees are liable to refund at the
suit of an unpaid creditor, and I have already held
that the plaintiff and his co-trustee are unpaid
creditors." This was all that it was necessary to
decide, but he then proceeds to consider the ques-
tion whether tip fact of the plaintiffs also being
2?1
executor disentitled him to a refund, and the con-
clusion at which he arrives is that it did net, on the
ground that the executor had no notice of a claim,
but only of a possible liability. The possibility was
not only that the company might fail, but that the
remainder men might disclaim, that there might
thus be a resulting trust for the estate, and that
the estate might become liable to indemnify the
trustees, and the executors were held net to be
guilty of negligence in not providing for this
remote contingency. It by no means follows
that the Master of the Rolls would have held
the executors free from personal responsibility
if the shares had remained in the name of the
testator, and the question had arisen whether the
executor should pay the call de bonis propriis. In
the present case there certainly was negligence on
the part of the respondents in paying the heirs,
although the negligence was not so gross as to
deprive them of the right to a refund from the
heirs themselves. The payment having been made
in ignorance of the fact that the bank would fail,
our law implied a contract on the part of those to
whom it was made to refund to those from whom
it was received (Digest 44, 7, 6, section 3). But
this ignorance cannot avail the respondents when
■ued by the liquidators acting on behalf of the
creditors of the bank. There was a legal duty
upon the executors to protect the interests of the
creditors before paying the heirs, who were really,
although not nominally, partners in the bank, and
reaped their full benefits from it as a going oon-
eern. For their want of ordinary care and diligence
in the performance of this duty the respondents
are personally liable, and the rule must therefore
be made absolute, to the extent of any deficiency
of assets in their hands, with costs.
Mr. Justice Buchanan : These applications raise
questions of considerable importance to executors,
relative to their duties in the administration of
estates of deceased persons. With regard to the
Knglj«h decisions which have been cited, useful
as such authorities are when they afford an
analogy, it must be remembered that under our
law an executor's position differs very materially
from that of an English executor. Our system
deals, I think, far more equitably than the English
with persons occupying fiduciary positions. With
us an executor does not as such undertake any
personal liability for the obligations of the deceased
person whose estate he administers. The Privy
Council, in the appeal from this Court in " De
Montmort v. Broers " (erroneously reported as
u De Montfort v. Broers"), 18 App. Gas., 166, and
again in "Farnnm v. Administrator-General of
British Guiana " (14 App. Gas., 668), laid it down
on the authority of " Van der Keessel " (Th.
823). that according to Roman-Dutch law the
executors of a testament were in reality procura-
tors, and that their powers in relation to the estate
falling to the testator's heirs were merely those
of management. In the recent caBe of " Fischer v.
the Liquidators of the Union Bank " (8 Juta, 68),
the Chief Justice expressed the opinion that this
was a correct statement of the law as it existed in
Holland, but that in this colony it had been
considerably modified by our local Ordinance
No. 104. His lordship said: "If the Privy
Council intended to lay down that by the law of
this colony executors are, in relation te creditors,
mere managers or procurators, their view would
be dearly in conflict with the Ordinance, which,
indeed, appears not to have been quoted before
their lordships." From the rest of the judgment
I gather that this refers to the fact that under the
Statute executors are vested in their executory
oapaoity with the estate itself; but there is nothing
in the case from which I have cited, or in the
Ordinance, which, apart from any question of due
administration, infers that any personal liability
for the debts of the deceased is cast upon an
executor. True, the executor, rather than the
heir or benefioiary, comes nearer to the position of
the here* of the Roman law, but as was pointed
out recently, he is such hires, protected by the
privilege of the benefit of inventory. And again,
unlike the English practice, with us the adminis-
tration of estates is a business, the pecuniary
remuneration for which is in some instances fixed
by statute and in others left to the discretion of
the Master ef the Court, and upon the amount so
earned a duty is payable to the publio revenue.
In the cases before us the names of the
deceased are upon the list of shareholders of
the banks, and on the list of contributories the
estates of such deceased shareholders appear, the
executors not being mentioned. The call has been
made upon them in their fiduciary capacity only ;
and there is nothing in the Winding-up Act
which imposes any personal liability en an
executor. Moreover, the trust deed of the
Union Bank more particularly, instead of seek-
ing to impose any such liability, recognises the
right of an executor to hold, in that capacity, the
shares of a deceased penon. Under these circum-
stances the application to issue execution against
the executors de bonis propriis can, I think, only
be based on some default in administration. The
default alleged on both these applications is the
paying out of the residuary estate while there
remained shares in going concerns registered in
the names of the testators, upon whioh shares
there was a contingent liability for calls. Now
our statutory provisions for the guidance of
executors in their administration are not very
complete or exhaustive. By the 28th section of
Ordinance No . 104, executors are required, upon
appointment, forthwith to make an inventory of
the estate, and to transmit the same to the
Master. Upon entering into the administration,
272
the 80th section requires the executor, by publio
notice, to oall upon all persona interested to lodge
their claims with him ; and the 81st section
suspends execution of any judgments against
the deceased or his estate for a period of six
months, exoept with the special leave of the
Court. Next comes the 82nd section, which was
cited as specially protecting the respondents.
It enacts that upon the expiration of the period
fixed by the notice calling in claims, the
executor shall forthwith proceed to rank, accord -
to their legal order of preference, all such
debts and claims as may have been lodged
with him, "or of the existence of whioh they
shall have knowledge," and shall discharge the
same so soon as necessary funds are realised. In
the event of an insufficiency of assets, the executor
is liable to pay any person of the existence of
whose claim he was aware who has been prejudiced
by a payment to other creditors who were not
entitled to preference. There is a proviso, how-
ever, protecting creditors who have lodged
their claims, and who have been paid against
claims by creditors who had not so lodged their
claims before the date of payment. The section
oonoludes with a farther proviso that a creditor
who has not lodged his claim in due time shall
have no claim " against any executor or executors
in respect of any such distribution as aforesaid of
the funds of any such estate made by him or them
after the expiry of such period as aforesaid (i.e., the
date fixed for lodging claims), and before the claim
of Buch person shall have been made known to
such executors." On this clause it was argued for
the respondents that as no claim was filed, nor
indeed could be filed, by the liquidators at the time
of the distribution of the assets the executors were
now protected. But since that contention was set
up it has been repeatedly pointed out that this pro-
viso refers only to payments to creditors and not
to a distribution of the residue of the estate among
beneficiaries And this disposes of the case of
M Kotze' v. Widow Mostert " (Buch., S.C. Rep M
1869, p. 199), which was also strongly relied upon at
the Bar, for in that case the dispute was between
creditors who had and who had not sent in their
claims to the executors. The proviso in the 82nd
section being thus disposed of, this seotion itself
tells rather against than for the respondents if we
take the view that the fact that there were shares
In the estate was notice to the executor of the
possible liability attaching thereon. The English
oases show that executors of deceased shareholders
in going companies in England pay legacies at
their own risk should any future calls be made.
"Taylor v. Taylor" (L.R. 10, Eq. 477) is
particularly in point, as in that case the shares
were still in the name of the deceased, and had
never been transferred to the executor, and he
could not on that ground have been held person-
ally liable. The judgment, which is reported in
a very few lines, states that the decision was
bated on the authority of " Knatohbull v. Feara-
head " (8 My. and Cr., 122), where the Lord
Ghanoellor laid down that where an executor
passes his accounts through the Court — I presume
in an administration suit — he is discharged from
further liability, and the creditor is left to his
remedy against the legatees ; but if the executor pays
the residue of the estate without passing his
accounts in court, he does so at his own risk.
There is no corresponding proceeding known to our
practice whereby an executor can obtain a ratifica-
tion of his administration, though in insolvency
the trustee's account becomes ret judicata upon
confirmation by the Court. Under the Insolvent
Ordinance a trustee has his account confirmed
before paying out the funds in hand ; whereas the
88rd section of Ordinanoe No. 104 requires the ex-
ecutor, so soon as the estate has been fully admin-
istered and distributed, to file a full and true
account with the Master. This mere lodging of
accounts has never been held to preclude an inquiry
into the administration of the estate. Although,
therefore, the principle upon whioh the decision in
" Knatohbull v. Fearnhead " is founded oanmot be
applied under our law, it remains for consideration
whether a rule similar to that laid down in
M Taylor v. Taylor" does not hold good
with us. After mature consideration I have
come to the conclusion that it does.
Under the civil law the heir stepped into the
position of and continued the persona of the
deceased, and was legally bound by all the debts,
though he might obtain the protection of the
several bentficia, suoh as the bentficium teparationis,
the beneHcium abttinendi, and the beneficium
inventarii, by which he might limit his liability to
the value of the property he acquired as heir.
Our modern executor suoceedesl to this liability.
Moreover the 82nd seotion of the Ordinanoe in
express terms imposes on the executor the duty of
paying off and discharging the debts of the deceased
as soon as the funds necessary for that purpose
shall have been realised out of the estate ; and the
29th section makes an executor or other person
who, without lodging with the Master an
inventory of the estate, unduly administers an
estate personally liable to pay the legatees as well
as the creditors of the deoeased, although the
estate be insufficient for the full payment thereof,
unless he proves what the estate really amounted
to and that his administration was not fraudulent.
The payment of debts is thus a duty imposed on
an executor ; and the same principle whioh requires
a man to be just before he is generous, imposes on
an executor the duty of satisfying the liabilities of
the deoeased before he acts upon the direction of
the testator to give away the assets to legatees
and other beneficiaries. Ignorance of the
273
existence of liabilities may protect an
executor who has taken due precautions before
making a bona-Jidt distribution of the assets,
but in the oases before u* I think
the facts are net such as would entitle the
executors to be exonerated on this ground. No
doubt in one sense the liability was contingent, in
that it was not certain at the testator's death that
any call would ever be made, but the shares
always carried the liability attaching to them. As
long as the shares were in the estate that risk
continued. If while this uncertainty and doubt
lasted the executors parted with the residue, in
my opinion they did not act with sufficient pru-
dence. This rule appears to me to be founded on
sound reason, aad if we once accept the principle
there are no grounds why it should not be
applied to all the cases now before us.
[Attorneys for the Bank, Messrs. Fairbri*'ge &
Arderne ; Attorneys for the Respondents, Messrs.
Reid 6 Nephew, Messrs. van Zyl 6 Bussinne, and
Gas Trollip.]
CAPE OF GOOD HOPS BANK, IN LIQUIDATION
Y. VAN LIER'S EXECUTORS.
A rule nisi was also granted in this case on the
17th March last, and was made absolute to-day.
The Chief Justice, in giving judgment, said :
This case differs from that of the " Liquidators of
the Union Bank v. Executors of Watson" in two
respects — that is, the company in which the
testator held shares was limited, and he had him-
self directed that the shares should not be sold but
remain under the administration of the respondents
for the purpose of paying the dividends to the
Institute for Indigent Ladies. But although the
liability of the bank was limited the shareholders
remained liable, at the date of the winding-up
order, to a call of £30 for each share. It is in
respect of this call that the respondents, in their
capacity as executors, were placed upon the list of
oontributories. As to the direction that the shares
should not be sold, the respondents accepted the
office of executors with the full knowledge of this
direction and of the difficulties which it might
entail in the course of their administration. It is
unnecessary at this stage to inquire whether,
as between the heirs under the will
and the legatees of the shares, the
former or *the latter were primarily liable
for the unpaid portion of the shares. The
analogous question as to whether the heirs or the
legatees of mortgaged property should redeem the
mortgage was discussed in the case of " Rath-
felder v. Rathf elder" (Buch. Reports, 1874), and
the authorities are collected in the report of that
esse. As to the creditors of the bank, they were
entitled to regard the executors as liable for the
debts upon failure of the bank so long as the
shares formed portion of the estate. Here also if
the executors ohose to pay out the heirs and
legatees they did so at their own risk. They could
not, it is true, consistently with the provisions of
the will sell the shares, but they might have
refused to distribute the assets amongst the heirs
unless the latter would consent to the deduction of
a sufficient sum to meet the further possible calls
of £80 per share. The question might then have
been decided whether the heirs or the legatees
should indemnify the executors for any loss that
might be entailed on them through continuing to
hold the shares. But this is a question which
does not concern the applicants as liquidators of
the bank. They were entitled to be paid
out of the assets of the estate which
were in existence during the time when
the estate was in the partnership in
preference to the heirs, who were only entitled to
the residue after payment of all debts. The
respondents may have their recourse over against
the heirs or against the legatees of the shares — and
this recourse will, of course, be reserved to them —
but the rule nisi calling upon them to show cause
why they shall not pay the calls de bonis propriis
must be made absolute with costs.
[Attorneys for the Bank, Messrs. Reid &
Nephew : Attorneys for the respondents, Messrs.
Weasels & Standen.]
UNION BANK V. HOFMBYB'8 EXECUTRIX.
Mr. Sohreiner for the applicants ; Sir T. Uping-
ton, QC M for the respondent.
Mr. Sohreiner moved that the rule nut, granted
by the Court on the 28th February (ante p. 64),
calling upon the respondent to show cause why
she should not pay, de bonis propriis, the calls in
respect of thirty shares in the Union Bank should
not be made absolute.
Sir T. Upington shortly re-stated the circum-
stances of the case, which he said bad already been
fully argued. He referred the Court to " Home
and Leodolff " (1 Menzies, 408) and " Underwood
and Hatton " (6 Beavan, 86).
The Chief Justice said that with regard to this
case he thought if there were any difference
between it and the two which had just been dis-
posed of the difference was rather against the
respondent, because three-fourths of the amount
of the inheritances she had paid herself, whilst in
the other cases the inheritances had been paid to
others. It would have been difficult for the
respondent to avoid being held liable for the three-
fourths, but on the principle on which the ether
two cases had been disposed of the rule in the
present case must be made absolute, with costs.
[Attorneys for the Bank, Messrs. Fairbridge &
Arderne ; Attorney for the Respondent, Paul de
VHliers.]
*■ ••
274
IN RE UNION BANK, IN LIQUIDATION V.
WATSON'S HEIBS.
Mr. Sohreiner mentioned the rule in the above
case, and aaked that the cost* in that application
might be included in the costs against the
executors of Watson.
The Chief Justice said the order would be in
regard to the three oases that the rule would be
made absolute with costs, and in the one case,
that of the liquidators against the heirs of
Watson, the rule would be discharged with costs.
PETITION OF AKTHUB JAMES MCLEOD.
Articled clerk — Incorporated Law Society —
Act 27 of 1883, sec. 14 — Non-compliance
with terms of section.
Mr. Molteno appeared for the petitioner, and Mr.
Juta for the Incorporated Law Society.
This was an application praying the Court to
authorise the Law Society to receive petitioner's
articles and allow them to operate from the date
of filing the same. It appeared from the petition
that on the 26th July, 1890, the petitioner entered
into articles of clerkship with Mr. B. J. Bishop
Gardner, an attorney practising at Barkly West.
That the agreement was duly stamped and filed
with the Registrar of the High Court of Griqua-
land West, but that the petitioner had omitted
to file a copy of his articles with the Law Society
within three months of the execution of the
same in terms of Act 27 of 1888, section 14.
An application was subsequently made to the Law
Society, but that body refused to receive the
articles without an order of Court The argument
was heard on the 20th August, and the matter
stood over until to-day, the Law Society in the
meantime virtually consenting to the granting of
the application.
The Chief Justice said that in regard to this
application he was satisfied that unless the Law
Society consented to it it could not be granted, but
seeing that the consent of the Law Society had
been obtained, the Court would grant the applica-
tion. The case was not to be regarded as a pre-
cedent, however, because every case must be
considered by the Law Society before registration
oould be dispensed with.
SUPREME COURT.
(IN CHAMBERS).
TUESDAY, SEPTEMBER 16.
[Before Mr. Justioe SMITH and Mr. Justice
Buchanan.]
IN RE DANIEL VICTOR KANNEMEYER.
On the application of Mr. Sohreiner, Mr. Daniel
Victor Kannemeyer was admitted to practise as
an attorney and notary public, The oaths to be
taken before the Resident Magistrate of
Burghersdorp.
IN THE INSOLVENT ESTATE OF EDWIN DODD.
On the motion of Mr. Molteno, Mr. W. C.
Osmond was appointed trustee in the shore
estate.
THE PETITION OF ALFRED BEVERN.
Land — Option of purchase — Neglect to
exercise same — Sale — Refusal of Registrar
of Deeds to pass transfer — Rule nisi.
Mr. Schreiner appeared for the petitioner.
The petition set forth that by a deed of transfer
dated 1st November, 1889, the petitioner acquired
from one James Edward Mears a certain piece of
land situate at Sea Point, subject to the following
condition : That should the petitioner wish at any
time to sell the said ground and any buildings
which might have been erected thereon while the
said J. E. Mears remained the proprietor of the
remainder of the said property, then the said
J. E. Mears should have the refusal of the
purchase thereof at the cost price of the
said ground and buildings as declared by petitioner
on the 1st March, 1890, and in addition thereto one
half of the additional price for which the peti-
tioner should be able to sell the same to parties
other than the said J. E. Mears. On the 24th
July, 1890, the petitioner offered the said landed
property to G. W. Steytler, who is the general
agent in this colony of Mears, and again on the
16th August, 1890, the petitioner, through Mr.
Attorney Moore, offered the property to Mr.
Steytler, as Mears's agent, for £8,125. At the time
of the latter offer it was intimated to Mr. Steytler
that unless a definite reply was reoeived by
the 18th August the petitioner would assume
that Mears declined to purchase the property.
On the 16th August, 1890, Mr. Steytler cabled to
his principal in Europe but no reply was. received.
The petitioner alleged that he had performed in
every respect the obligations imposed upon him,
fi75
and that Mean had failed and refuted to exercise
the option of purchase, although every opportunity
was afforded him of doing so. The petitioner
lately sold the property, but the Registrar of
Deeds requires the consent of Mean or
of his agent to transfer being passed to the
purchasers. Mr. Steytler refuses to give his
consent in the absence of instructions from
bis principal without an order of Court.
The petitioner prayed that the Court might be
pleased to grant an order directing Mr. Steytler, in
his capacity as agent of Mean, to sign whatever
document might be necessary or required by the
Registrar of Deeds in order to enable the peti-
tioner to give transfer to the purchasers in due and
customary form.
The Court granted a rule ni$i t returnable on the
22nd inst^ calling upon Mr. Steytler, as general
agent of Mean, to show cause why the Registrar
of Deeds should not be authorised to pass transfer
ef the property to the purchasers.
SUPREME COURT.
(IN CHAMBERS.)
TUESDAY, SEPEMBER 22.
[Before Mr. Justice SMITH and Mr. Justice
Buchanan.]
BEGIN A V. 8TEPHANUS.
Mr. Justice Smith remarked that this case had
come before him on review. The prisoner was
convicted of having contravened Section 29, J ct
23 i f 1888 in that he conspired with another man
to break out of gaol. The only evidence against
the prisoner was that he had said to a fellow
prisoner : " Ton had better escape, as the work is
too hard." There was no evidence whatever of
conspiracy, and the conviction must be quashed.
KEOINA Y. SEALS.
In this matter, which came from the Resident
Magistrate of Port Nolloth, the prisoner was
charged with, and convicted of, having stolen a box
containing forty-four ostrich eggs, valued at Is. 8d.
each. There appeared to be two Seales working at
the copper mines, to one of whom (not the accused)
the eggs and a letter had been sent. It appeared
from the evidence that the prisoner, who eould not
read, wat under the impression that the eggs had
been sent to him, and as there seemed to be no
intention on his part to commit theft, the conviction
Would be quashed
IN BE J. J. WICHT.
On the motion of Mr. Maskew, Mr. Johannes
Jacob Wioht was admitted to practice as a con-
veyancer.
GENERAL MOTIONS.
IN THE INSOLVENT ESTATE OF LE ROUX.
On the application of Sir T. Upington,
Q.C., the Court granted the issue of a
commission to the Resident Magistrate of
of the Paarl for the purpose of taking the evi-
dence of Maria Johanna le Roux and others con-
cerning their dealings with the said estate.
PETITION OF DAVID JOHANNES MALAN.
Mr. Maskew moved for authority to the
petitioner, who is a shareholder in the
Union and Paarl Banks (in liquidation), to
transfer to the estate of Charl Wynand Malan
certain piece of ground adjoining the place
Yzervarkin's Rug, in the district of Malmesbury,
sold to the said Malan in 1855, but inadvertently
omitted to be transferred.
Mr. Justice Smith remarked that there was no
legal evidence before the Court to show that the
liquidators or creditors consented to the appli-
cation, and under these circumstances the matter
would be ordered to stand over.
PETITION OF CATHERINE M. LE ROUX.
Mr. Shiel appeared for the petitioner, and moved
for her appointment to represent her minor
children by her first husband, in the partition of
the farm Klipkuil, in the district of Robertson,
and for authority to raise a loan in order to pay
off a mortgage bond for £400 which has been
called up by the mortgagees, Messrs. Green A Co.
HILL AND PADDON V. THE COLONIAL GOVERN-
MENT.
Sir T. Upington, Q.C., appeared for the
applicants, and the Acting Attorney-General (Mr.
Searle) for the Government.
By consent, the award of the arbitrators in the
matter between the parties was made a rule of
Court.
PETITION OF PETBONELLA B. NESBITT.
Mr. Webber, on behalf of the petitioner, moved
for leave to sue in forma pauperis in an action
for divorce against her husband, Frederick
Nesbitt, by reason of his malicious desertion.
Referred to counsel for his certificate,
276
IN BE THE GAPE STOCK FARMING COMPANY,
LIMITED, IN LIQUIDATION.
The Acting Attorney-General (Mr. Searle)
appeared for the applicant! ; Messrs. McDonald,
Vardy & Co., of Port Elizabeth, and Sir T. Uping-
ton, Q C, for the respondents, the executors of the
late Mr. J. B. Bvans.
On the 81st August last the company was plaoed
under the operation of the Winding-up Act. The
matter was mentioned in chambers on Tuesday
last, and ordered to stand over for the production
of certain affidavits.
The case oame on for further hearing to-day,
when Mr. Searle moved to rescind the order of
Court of the 81st August last, on the grounds that
certain facta and circumstances material for the
consideration of the Court were not disclosed on
the ex parte application. The chief facts relied
upon in the present application, and whioh were
not before the Court on the previous occasions,
were :
1. That the interest on the debentures due on
the 80th June last had been duly paid.
2. That of the total issue of £48,500 of deben-
tures, £28,250 matured on the 80th June last, and
that it was a condition expressed in the debentures
that the holders thereof could not enforce them
until default Had been made in payment of
principal or interest for three calendar months
from the due date.
8. That certain negotiations were being con-
ducted in London with a view to the reconstruc-
tion of the company.
The Court, after hearing the affidavits, held that
no fret* had been disclosed which would justify
them in rescinding the order of the 81st August,
and refused the application with costs. The
matter of appointing a second liquidator might be
again mentioned if no satisfactory arrangement
could be arrived at.
IN BE THE PETITION OF ALFRED BEVEBN.
On the application of Mr. Webber, the Court
made absolute the rule nut granted in this matter
on the 15th instant.
STEYTLEB V. HUDSON.
The Acting Attorney-General (Mr. Searle)
appeared for the applicant, and Sir T. Upington
for the respondent.
In this matter the Court made absolute the rule
nisi interdicting the respondent from allowing
drainage, slush, and refuse matter to flow from
his property down to that of .applicant in Somerset-
roa4*
IN RE THE VILLAGE MANAGEMENT BOARD
OF WALMEB.
This matter was ordered to stand over onto
Tuesday next.
SUPREME COURT.
(IN CHAMBERS).
TUESDAY, SEPTEMBER 29.
[Before Mr. Justice Smith and Mr. Justice
Buchanan.]
IN BE H. J. SONNBNBERG.
The Acting Attorney-General (Mr. Searle)
moved for the admission of Mr. Harry Joseph
Sonnenberg as an attorney, notary, and convey-
ancer.
Mr. Sonnenberg took the oaths and was duly
admitted.
GENERAL MOTIONS.
PETITION OF ELIZABETH KBETSCHMAB.
Mr. Shiel, on behalf of the petitioner, moved for
leave to sue in forma pauperis, in an action for
judicial separation against her husband, John M.
Kretaohmar, by reason of his violent and cruel
conduct towards her.
Referred to counsel fer his certificate.
PETITION OF DAVID J0HANNE8 MALAN
On the motion of Mr. Maskew, authority wai
given to petitioner, who is a shareholder in the
Union and Paarl Banks (in liquidation), to
transfer to the estate of Charl Wynand Malan s
certain piece of ground adjoining the place
Yzervarkens Rug, in the district of MalmeBbury,
sold to the said. Malan in 1885, but inadvertently
omitted to be transferred.
IN BE THE VILLAGE MANAGEMENT BOARD OF
WALMEB.
Mr. Shiel appeared for the applicants (the
chairman and members of the Village Mauage-
ment Board), and the Acting Attorney-General
(Mr. Searle) for the respondent (Mr. J. S. Reed).
This was an application for an order confirming
the pale by the Sheriff of a certain lot of gionad,
marked No. 61, situated in the village of WaJmer,
district of Port J£li?abeth, and attached under the
m
provisions of the Titles Registration and Dereliet
Lands Act, 1881. The lot in question was sold in
1868 to the late firm of J. d. Re°d & Co., bat
transfer was only taken in 1884. The present
respondent is the only surviving partner of the
late firm of J. S. Reed & Co. According to the
applicants no rates had been paid on the said lot,
No. 61, since the year 1884, except the rates pay-
able for 1890, which were paid on the 26th August
of that year, after the lot in question had been
attached by the Sheriff under the provisions of
Act 28 of 1881. The applicants further alleged
that since the dissolution of the partnership of
J. 3. Reed and Co. the respondent had frequently
repudiated the ownership of the lot in question,
and refused to pay the rates due on it. The lot
was subsequently sold on the 29th August last as
derelict in satisfaction of the rates then alleged
to be due, and the present application was for
confirmation of that sale.
The Court, after hearing the affidavits, held that
the effect of the Derelict Lands Act had been mis-
conceived ; that the respondent, as the surviving
partner of the late firm of J. S. Reed A Co,
notwithstanding his repudiation of ownership,
should have been proceeded against in the ordi-
nary course for the recovery of the rates due, and
on these grounds dismissed the application for
confirmation of the sale with costs.
PETITION OF THOMAS G. JACKSON.
Mr. 8earle, on behalf of petitioner, applied for
leave to sue by edictal citation in an action for
divorce against his wife by reason of her adultery.
It appeared from the petition that the peti-
tioner, who is now living in Natal, was married to
his wife in this colony, and that the alleged
adultery was also committed here, but that his
wife is at present living in Australia with one
Gates, by whom she is reported to have had
two children.
Mr. Justice Smith expressed the opinion that,
the petitioner should have sought his remedy in
the Natal Courts. There was no legal evidence
that this Court had jurisdiction, and under these
circumstances the application would be refused.
IN THE INSOLVENT ESTATES OF J. H. AND
J. M. KBETZ1NGEB.
Mr. MoLachlan moved for the appointment of
Mr. Thomas Blake as sole trustee in the said
estates.
Mr. Searle applied for the appointment of Mr.
Steyn as trustee.
It appeared from the petitions that at the
second meeting of oreditors Mr. Steyn represented
a majority in number, and Mr. Blake a majority
in value. The papers were sent to the Master and
no election was declared as neither party had a
majority in number and value.
The Court, in appointing Mr. Blake, provisional
trustee with power to liquidate the estates,
remarked that it would be well if some rule existed
to meet a case like the present, in which there
were two applicants for the office of trustee, by
means of which after the receipt of notice the un-
successful applicant should have to pay the cost of
the application.
In the present case, under the circumstances
oosts would be given out of the estates, but this
was a course which should not generally be
followed.
1
DIGEST OF CASKS.
PAGE
Act 28 of 1881 — Application for registration
of title — Prescription — Rule nisi dis-
charged—Petition of N P. Uys ... 189
Act 28 of 1883— Sees. 73 and 76— Contraven-
tion — Conviction — Pine — Review — 190th
rule of Court— Exception
Application for leave to bring proceedings
under review by reason of their gross
irregularity refused on the grounds inter
alia that the exception should have been
taken in limine
Petition of Thomas Sampson ... ... 184
Alimony — Action for — Topp v. Topp ... 215
Ante-nuptial contract — Settled land — Sale —
Leave given to vary investment
In re the ante-nuptial contract of Wright
and Drennan... ... ... ... 178
Ante-nuptial contract — Leave given to the
trustee to raise money on mortgage of
the settled land to pay off claims in
husband's insolvent estate
In re the ante-nuptial contract of Dencya and
i5&Ker ... ... ... ... i oo
Appeal from sentence of Resident Magistrate
—Exception— Act 21 of 1876, Sec. 4—
Non-compliance with terms of section —
Appeal dismissed — Regina v. Prince ... 199
Appeal— Costs— Act 5 of 1879— Sec. 14
Marais v. Langford ... ... ... 234
Appeal — Extension of time — Leave — Act 5
of 1879, Sec. 11 — Arrest of person ad
fundandamjurisdictionem
L. & S. A. Exploration Co. (Limited), v.
Cathypadyachy ... ... ... 185
Articled Clerk — Incorporated Law Society—
Act 27 of 1883, Sec. 14— Non-compliance
with terms of section
Petition of A. J. McLeod... ... ... 274
Cause — Application to remove trial from
Supreme Court to High Court — Dominus
litis — Right to select his own tribunal —
Coussmaker v. G-.W. Board of Executors 2o4
Collation — Advancement — Promissory Note
— Prescription — Legitimate portion — Aot
23 of 1874, Sec. 2
Although the right to the legitimate portion
has been done away with, the rule still
remains in force that advancements made
by a parent and debts owing to him but
not satisfied during his lifetime must, in
page!
the absence of any indication of a wish
on his part to the contrary, be collated
by his children so advanced or indebted
for the purpose of ascertaining their
shares of inheritance
Jooste v. Kok ... ... ... ... 251
Company — Agreement to purchase property —
Resident Director — Power to bind Comp-
any — Servitudes
Midler's Executors v. The Argus Co. ... 205
Company— Bank in liquidation— Act 23of 1861,
Sees. 11, 12, 13— Act 12 of 1868, Sec. 22
— Contributories — Excussion — Insolvent
shareholders — Liability of past sharehol-
ders — Deed of Settlement — Indemnity
The Cape of G. H. Bank (in liquidation) v.
Stamper and others ... ... ... 173
Company — Bank in liquidation — Act 12 of
1868, Sec. 21— Contributory— Set off-
Execution— The Paarl Bank (in liquida-
tion) v. Wicht ... ... ... 183
Company — Bank in liquidation — Present
shareholders — Compromises — Liability
of past shareholders
A compromise with a present shareholder
releases the former holder of the par-
ticnlai shares held by the present holder,
but it does not release persons who held
shares other than those in respect of
which there has been a compromise
In re The Paarl Bank (in liquidation) ... 215
Company — Bank in liquidation— Unlimited
liability — Contributories — Calls —
Deceased shareholder — Executors —
Negligence — Liability of heirs — Ordi-
nance No. 104, Sec. 32
Watson's Executors v. Watson's Heirs ... 241
Company — Bank in liquidation — Deceased
shareholder — Contributories — Liability
of executors — Payment of calls de bonis
propriis — Condictio indebiti — Ordinance
No. 104, Sees. 30 and 32 — Taylor v.
Taylor (L.R. 10 Eq. 477) discussed —
The Union Bank (in liquidation) v.
Watson's Executors ... ... ... 269
Company — Statutory rights — Threatened
expropriation of land — Interdict - Arbi-
tration
Cape Town Council v. The M. <fc S. P. Rail-
way Co. ... ... ••• ... 249
J
11
DIGEST OF CASES.
PAGE
Contract with Cape Government — Deduc-
tions from moneys payable under contract
lodged in bank in name of Agent-General
as se?urity for due fulfilment of contract
— Equitable assignment — Insolvency of
assignors — Notice of assignment — Refusal
to recognise same - Transfer of funds to
Colonial Treasury — Cession — Payment
by Colonial Government to cessionaries —
Judicature Act of 1873—86 and 37 Vic.
cap 66, Sec. 26 (6) — Case governed by
English Law
The law of this colony requires no particular
form of words for the purpose of effecting
a complete cession of action. What it
does require is that the intention to effect
the cession should be clear and beyond
doabt "Pick v. Bierman" (2 Juta, 26),
and that no further Act should be
necessary to complete the cession. *' Mills
v. Benjamin " (Buch., 1876, 115)
If there have been two cessions and the first
cession was completed before the execu-
tion of the second one the first must
prevail
Whatever the rules of the English common
law may have been before 1873, it was a
settled rule of the Courts of Equity that
anything written, said, or done in pursu-
ance of an agreement and for valuable
consideration, or in consideration of an
antecedent debt, to place a chose in action
or fund out of the control of the owner,
and appropriate it in favour of another
person amounted to an equitable assign-
ment. The substance of the transaction
was looked to, and if the intention of the
parties to transfer the ch*se in action or
fund to the use of the assignee was
manifest, the fact that somewhat in-
appropriate language was used for the
purpose would not be allowed to defeat
their intention. Notice, however, to the
debtor or holder of the fund was essential
to the completion of the assignment
Wripht & Co. v. The Colonial Government... 216
Costs — Nuisance — Provisional interdict
Where on an application for an interdict
restraining the continuance of a nuisance
the applicants had shown sufficient cause
for the granting of a provisional interdict,
but the matter was ordered to stand over,
and a further application was sub-
sequently made but withdrawn, on proof
that the nuisance had been abated, costs
were given the applicants on both
motions
Claremont and other Municipalities v
Ohisson's Cape Breweries ... ... 196
PAGE
Costs— Taxation — Decision of Taxing Master
upheld
Jn re Lawrence v. Ward k Wessels ... 214
Criminal Law — " Attempting to commit
theft by false pretences " — Indictment-
Act 8 of 1861, Sec. 7— Point reserved-
Conviction upheld
Regina v. Adelburg ... ... ... 191
Criminal Procedure— Theft by embezzlement
— Case remitted- Irregularity — Prisoner
not Berved with fresh summons — Refusal
of prisoner to plead — Conviction —
Sentence — Appeal — Regina v. Meiring... 2*25
Damages — Action for — Alleged partnership
Schakofsoo v. Van Noorden ... ... 235
Debt — Action for — Pleadings — 5th rule of
Court — Exceptions —Curtis v. Day ... 208
Debt — Action for— Alleged breach of contract
—Quarrying operations
Peters v. Skead, Cowling A Co. ... ... 210
Debt — Action for — Exception to Magistrate's
jurisdiction — Reduction of counter claim
— Appeal
Armour v. Murray 6 St. Leger ... ... 256
Deeds Examiners — Appointment under Act
19 of 1891 ... ... ... ... 267
Defamation of character — Action for
damages — Exception to declaration as
disclosing no cause of action
Cilliers v. Pienaar and wife ... ... 194
De lunatico inquirendo — Funds in possession of
curator bonis — Disposal of— Fn re Hyland 179
De lunatico inquirendo— Beckham v. Beckham 189
Diamondiferous farm — Right to prospect and
develop — Agreement — Cession — Re-
cession — Rights and obligations of cedent
Imroth v Ward ... ... ... ... 200
Diamond Trade Act No. 48 of 1882— Contra-
vention— Conviction — Evidence of trap-
Credibility — Appeal
Regina v. Blumenthal ... ... ... 268
Edictal Citation — Leave given to sue by —
Petition of M. Mantle ... ... 173
Groenewald's Executrix v. Beneke... ... 182
Funds in hands of plaintiff's attorneys —
Application by defendant (wife of plain-
tiff) for a portion of funds to enable her
to prepare defence granted — Petition of
M. A. Hatch... ... ... ... 195
Goods in transitu — Attachment ad Jundandam
jurisdictionem
In re F. C. Bell ... ... ... ... 241
Guano Islands — Right of landing — Disturb-
ance of birds — Salvage— Interdict
Section 446 of the Merchants 1 Shipping Act
of 1854 (17 and 18 Vic. cap 104) has no
application in this Colony, and the effect
of the General Law Amendment Act of
1879 was not to introduce that section
DIGEST OF CASES.
111
PAGE
Anderson & Murison v. The Colonial Gov-
ernment ... ... ... ... 259
Insolvency — Application for compulsory
sequestration — Act 38 of 1884 — Sec. 3 —
Notice of intention to surrender — Sched-
ules not filed — Mistake — Locus poenit entice
—Provisional order discharged
Fletcher & Co. v. Le Sueur ... ... 203
Insolvency — Trnstee— Joint will — Adiation
— Life interest — Property registered in
name of insolvent — Rights of heirs —
Harris v. Buissinne's Trustee (2 Menz.,
105) affirmed
ViljoenV Heirs v. Viljocn's Trustee
(In re the Insolvent Estate of C. J. Viljoen) 213
Insolvency— Ordinance No. 6 of 1843, Sec.
49— Written permission given Insolvent
to trade in his own name and for his own
benefit — Property acquired subsequent
to surrender and before filing liquidation
account — Fire policy — Cession — Warner's
Assignees v. Warner's Trustees (4 Juta,
227) commented upon and distinguished
In the Insolvent Estate of Joseph Grady ... 229
Land— Option of purchase — Neglect to ex-
ercise same — Sale — Refusal of Registrar
of Deeds to pass transfer — Rule nisi
Petition of Alfred Be vera ... ... 274
Lease— Lessor and Lessee— Debris washing-
Tacit relocation — Interdict
De Beers Consolidated Mines (Limited), v.
lioon ... ... ... ... lol
Lease — Alleged breach of covenant for quiet
enjoyment — Nuisance— Loss of business
— Damages — Counterclaim — Tender —
Cost* — Gill v. De Vries ... ... 239
Licensing Court— Act 28 of 1883, Sec. 60—
Refusal to renew a licence whioh had
been held for three yean — Appeal
Notwithstanding Section 50 of Act 28 of
1 883 the members of a Licensing Court
can decide from their own personal
knowledge whether the renewal of a
licence should be granted or not
Barnett & Co. v. The Namaqualand Licensing
Court ... ... ... ... 186
Magistrate's jurisdiction — Exception — Act 20
of 1856, Sec. 8
Bain's Executor v. Haupt... ... ... 198
Magistrate's jurisdiction- Act 20of 1856, Sec.8
—Title to land in dispute— Koller v. Abas 200
Marriage according to Mahomedan rite —
Illegitimate children — Succession through
Mother — Funds in possession of Master
Jassiem and others v. The Master and Steytler 212
Master and servant — Alleged wrongful dis-
missal — Damages — Disobedience of
servant — Justifiable dismissal
Woodman v. Robinson ... ... ... 263
PAGE
Mortgage Bond — Application for cancellation
of where bond could not be found after
death of mortgagee— Rule nisi — In the
estate of the late Herman Oppenheim ... 184
Mortgage Bond — Omission of general clause
— Amendment — In re the application of
J. H. Lamb ... ... ... ... 186
N egligence — Executors — All eged mal-admin-
istration of estate - Damages
Nel & Tiran v. Lind <fc Tiran ... ... 257
Pound Master — Divisional Council — Civil
Commissioner — Ordinance 16 of 1847,
Kec. 18 — Damages for alleged contraven-
tion—Exception to summons — Act 1 of
1857 and Act 40 of 1889, Sec. 216—
Appeal— Langford v. Marais ... ... 266
Practice — Rule of Court 330 (a) — PleadingB
—Bar
Van Zyl v. De Beer ... ... ... 196
Blander — Action for damages — Privileged
communication — Social duty — Cilliers
v. Pienaar and wife ... ... ... 201
Transfer— Action for — Written agreement
of sale and purchase — Cancellation— Van
Zyl v. De Beer ... ... ... 230
Transfer — Action for— Power of Attorney —
Signature obtained through alleged fraud
and mis - representation — Trespass —
Counterclaim
Kincaid v. Nixon's Executors ... ... 242
Transfer of landed property
Under special circumstances leave given wife
married out of community of property,
the maritial power not being excluded,
to sell and give transfer of settled land
without concurrence of her husband
Petition of M. E. Lippert... ... ... 253
Trespass — Action for damages — Interdict —
Mining Board— Act 19 of 1883, Sec. 34—
" Exclusive control and management of
Mining Area" — Statutory reserve — En-
croachment — " Mining operations " —
Construction— Ordinance No. 11 of 1880
— Criqualand West — Bye-laws — Appeal
from judgment of High Court
The Bultfontein Mining Board v. Armstrong
and the L. <fe S.A. Exploration Company,
(Limited) ... ... ... ... 192
Trespass — Action for damages — Declaration
of rights — Prescription — Land Beacons
Act No. 7 of 1865, Sec. 47 (a), (6)
Jansen v. Cenradie ... ... ... 226
Winding-up Act— No. 1 2 of 1868 — Application
to be placed under operation of — In re
the Wellington Bank (in liquidation) ... 181
Winding-up Act— No. 12 of 1868— Company
placed under operation of, on application
of executors of deceased shareholder
In re the Cape Stock Farming Co. (Limited) 233
u
CAPE TIMES » LAW REPORTS.
SUPREME COURT.
MONDAY, OCTOBER 12.
[Before Mr.
Justice SMITH and Mr. Justice
Buchanan ]
BEGIN A V. COB US JANTJEB.
Mr. Justice Buchanan said that in this case the
prisoner was arrested on a charge of having com-
mitted two crimes in July last, and was sentenced
at Worcester for one offence, and then removed
te Tnlbagh and tried there for the other offence,
the Magistrate convicted the prisoner and treated
the first as a previous conviction. It had been
laid down in both the Supreme and Eastern
Districts Courts (Buch., S.C.R., 1873, p. 18;
Buck, S.C.R., 1875; Begina v. Kolibele, 8
BJXC, 125,) that, under such circumstances, the
first conviction could not be looked upon as a
previous convietion under the Act. The lashes
ordered to be inflioted under the sentence must be
struck out, but the other portion of the seutenoe
would be confirmed.
PROVISIONAL ROLL.
RATKXB AND CO. V. CLEMENTS BROTHERS.
Mr. Giddy, applied for an order for the final
adjudication of the estate of the defendants.—
Granted.
MCLAOHLAN BROS. V. DU TOIT.
Mr. Shiel applied for provisional sentence en a
promissory note for £27.— Granted.
it ■
&A. MUTUAL LIFE ASSOCIATION V. W. 0.
IfULLEB,
Mr. Watermeyer applied for provisional sentence
on a mortgage bond for £400.— Granted j property
executable.
STANDARD BANK V. I. P. H. OLIVIBK.
Mr. Shiel applied for the final adjudication of
the estate of the defendant.-^-Granted.
2o
LOGAN V. CARTER.
Mr. Watermeyer applied for the confirmation of
a writ of civil imprisonment on an unsatisfied
judgment for £52 9s. 3d., and taxed costs amount-
ing to £4 9s. 6d.
The defendant, who appeared in person, in reply
to questions from the Court said he was not
able to meet those liabilities at present, as he
was simply a constable at the Convict-station
at a salary of 2s. 6d. per diem and rations. He
had been residing at Matjesfontein with Logan,
and considered that his board and lodging there
were compensation for services performed in
connection with the electric light. He had been in
the Colony about twelve months ; he did not come
without means, but had spent all he had. He was
learning sheep-farming on the farm adjoining
Logan's, and was persuaded by him to go and live
with him.
Mr. Justice Smith : Can you give evidence, Mr.
Watermeyer, that the man has any means ?
Mr. Watermeyer : When the writ was served he
was stopping at the International Hotel.
The defendant was then examined, and deposed : I
am a oonstable on the Convict-station at 2s. 6d. per
day, and have no means independent of that. My
friends have made me some allowances since I
have been in the Colony. The last amount I re*
ceived about a fortnight ago ; it amounted to £50.
I expended that sum in paying various debts. I
have been gambling a little, but not muoh.
Cross-examined by Mr. Watermeyer t I stayed
with Logan from February until the end of June.
I oame to Cape Town with Logan and went to the
International Hotel with him. I remained at the
hotel nearly two months, and during that time I
did no work. I paid the hotelkeeper £10, and still
owe him a like sum. I expect more money from
home when I get out of this difficulty.
Mr. Justice Smith : When do you expect any
more money ?
The Defendant : I do not expect any more while
this is hanging over my head.
Mr. Justice Smith : It seems to me a very dis*
graceful thing, and I think you deserve to go to
prison. You borrow money to gamble with, you
run into debt with Logan, and here you come into
oourt and treat the matter with levity. If I was
at all oonvinoed that there was any money coming
280
to you I would grant the order and suspend sen-
tence in order to allow a ohanoe of the money being
paid. The Court will grant the order, execution
of the writ to be stayed as long as the defendant
pays 10s. per month, with leave to the applicant to
apply again if he learns that the defendant has
received any money from his friends in England.
OHLSBON AND GO. V. C. J. TIEDEHAN'S
EXECUTRIX.
Mr. Watermeyer applied for provisional sentenoe
on the balanoe of a mortgage bond for £72 10s.,
less £4 paid on account. — Granted ; property
executable.
B, M. BOSS AND CO. V. W. A. BAABTMAN.
Mr. Shiel applied for provisional sentence on a
promissory note for £62 9s. — Granted.
RAW BONE V. MULLEB, SMIDT AND CO.
Mr. Giddy applied for the final adjudication of
the defendant's estate, which was granted.
8NYMAN V. SNYMAN'S EXECUTOR.
Mr. Webber applied for judgment on a " kinder-
bewye " for £24 Ob 7d.— Granted.
LAWRENCE & 00. V. BU88AU BBOS.
Mr. Jones applied for provisional sentenoe on
an account for £61 Os. 2d. — Granted.
SCABBBOW V. BEYNEKB.
Mr. Watermeyer moved for provisional sentenoe
on a mortgage bond for £800 payable on demand
with interest.
Provisional sentenoe granted and property
declared executable.
ADMISSIONS.
tfhe following gentlemen were admitted to
practise, viz. i Mr. F. B. Steer, conveyancer ; Mr*
B. N. Badenhorst, translator; and Mr. P. D.
Clttver, attorney and notary*
APPLICATIONS FOR REHABILITATION.
The following applications were granted l
William John Henry Kemp, Hendrik Pieter
Moller, Petrus Lafras Human, Petrus Jacobus
Boltman, John Scott, Pieter Adriaan Stephanus
Gouws, Jan's son, Frederiok George Odendal,
Isaao Johannes Hercules van der Merwe, William
Aaron Morkel, Pieter Mara is. George Innes,
William Kent Stephens, Casparus Johannes Ryn-
houd Bresler, D.son, Dirk Gysbert van Reenen,
deoeased, and surviving spoute Helletje Maria
Elizabeth van Reenen, Hendrik Alb+rtyn Stig-
ling, G«rt Petrus Nicholas Coetzee.
IN BE ABRAHAM AURET.
Practice — Process in aid — Rule of Court 219.
Mr. Searle (Aoting Attorney-General) applied
fer piocrBs in aid of a writ issued by the High
Court of Griqualand West in respect of a fine
imposed on the said Auret, a witness in default,
who resides beyond the jurisdiction of the said
High Court. Mr. Searle said it appeared that on
26th August last, a witness named Auret did not
appear at the sitting of the High Court, and the
judge imposed a fine upon him under the 219th
Rule of Court, a writ was issued, but the Sheriff
did not feel himself justified in executing it,
without the aid of the Supreme Court being
sought, on the ground that Auret lived at Victoria
West, and therefore out of the jurisdiction of the
High Court.
The application was granted.
PETITION OP WILLIAM BURTON, JTTK.
Mr. Juta applied for an order to make absolute
the rule nisi for transfer to petitioner of
certain lot of ground, No. 1, Blook B, situated in
King William's Town, purchased by him in 1869,
but never registered in his name.
The order was granted, transfer to be made to
the executor of the estate.
PETITION OF GEOBGB OOLH WILLS*.
Mr. Juta moved for an order directing ths
Registrar of Deeds to pass transfer to the
purchaser of oertain landed property situated
at Rondebotoh, being portion of the place Palm*
boom, registered in the name of one Richard
Cole, since deceased, in trust for petitioner.
The Court granted an order authorising the
Registrar of Deeds to pass transfer.
PETITION OF PHTBONELLA C. NB8BITT.
Mr. Webber moved for a rule nisi requiring
petitioner's husband, Frederick Nesbitt, to shew
cause, if any, why she should not be admitted to
sue in fofma paftpeti* in an action for divorce by
reason of his malicious desertion*
The rule was granted.
281
PETITION OF MARIA JANE WIDDOW80N.
Mr. Watermeyer applied for an extension of
return day to the rale nisi admitting petitioner
tome in forma pauperis in an aotion against
her husband for a debt due nnder an agreement.
Application granted.
PETITION OF CHARLES WILLIAM LEE.
Mr. Jnta applied for an order allowing peti-
tioner's service as an articled clerk to Mr. J.
H. Kemp, in the City of London, to have effect as
service in this colony, and for admission as an
attorney of this Court, after passing such law
examination as may be prescribed.
The matter was ordered to stand over until
due notice had been given to the Incorporated
Law Society.
IH THE INSOLVENT ESTATE OF J. A. BOUX
AND CO.
Mr. Molteno moved for the appointment of
Petals Jacobus Desman as provisional trustee in
the said estate, with power to attend to the vine-
yard and crops.
The Court appointed Mr. P. J. Bosnian as pro-
visional trustee, with the usual powers.
In re MINORS RUDMAN.
Mr. Schreiner moved for authority to the tutor
dative of the said minors to agree to certain pro-
posed sub-division of a farm called Swanepoel's
Kraal, situated in the division of Jansenville, at
present held in undefined shares.
The application was granted.
PETITION OF STEPHEN BENJAMIN MATTHEWS.
Mr. Juta moved for an order giving leave to
attach certain lot of ground Ne. 835, situated at
TJzntata, and a bond and legacy devolving out of
the estate of Martha Ann White upon one Pem-
hferton Holmes White ad fundandam jurisdictionem
in an action for debt about to be instituted by
petitioner.
A rule nut was granted.
ESTATE OF THE LATE JOHN DANIEL BARRT.
Mr. Juta moved for leave to the executor dative
to amend the distribution account filed in the said
estate by awarding the widow certain sum in part
satisfaction of a claim under her ante-nuptial
oontract, and withdrawing the sums placed to the
credit of the minor children in the Guardians'
Fund.
The application was granted*
PETITION OF 8. P. A. SOHOBMAN.
Mr. Joubert moved for a rule nisi granting per-
mission to the applicant to make transfer of a
certain quarter of the farm Wilgeboom, now
registered in the name of W. Botha, in the estate
of the late A. B. Barnard.
The Court granted a rule nisi, returnable on
the first day of term, calling upon all parties
interested to show cause why the said transfer
should not be made.
PETITION OF O. P. VAN DER WESTHUT8EN.
On the motion of Mr. Schreiner (to which Mr.
Juta consented) the rule nisi granted at the
Circuit Court held at George on the 26th Sept.,
was discharged.
CAPE OF GOOD HOPE BANK (IN LIQUIDATION)
V. BELSON.
On the application of Mr. Schreiner the return
day in this matter was extended until the first
day of next term.
SUPREME COURT.
(IN CHAMBERS).
TUESDAY, OCTOBER 20.
[Before the Chief Justice (Sir J. H. DE VIL-
LI BBS, K.C.M.G.), Mr. Justice Smith, and
Mr. Justioe BUCHANAN.]
REOINA V. MOSES FREDERICKS.
Mr. Justioe Smith remarked that in this case
the prisoner, a boy of fourteen, was charged with
assault with intent to do grievous bodily harm. A
preliminary examination had been held, but the
case was remitted. The prisoner was then found
guilty of common assault, and sentenced to one
month's imprisonment with light prison labour
and fifteen lashes. The assault was a very bad
one, but as there had been no previous conviction
the sentence would be amended by striking out
the lashes.
The Chief Justice said that this was a case in
which the Magistrate might have sent the prisoner
to a reformatory.
REOINA V. LEOMAN.
Mr. Justice Smith said that in this case the
prisoner had been charged and convicted of having
282
escaped from Robertson gaol whilst awaiting
trial. The prisoner was found guilty, and sen-
tenced to six months 1 imprisonment and twenty-
five lashes. Under Aot 28 of 1888, section 28, an
unconvicted prisoner could only be sentenced to
imprisonment or corporal punishment, but not to
both. This sentence would also be amended by
striking out the twenty- five lashes.
BEGIN A V. LUCAS AND WATKINS.
Mr. Justice Smith remarked that in this case the
first-named prisoner was charged with having
escaped from prison, and the second-named
prisoner, a constable, with neglect of duty. Both
the prisoners were tried together. With regard to
Watkins there appeared to be no evidence against
him, and as the charge might affect Watkins in
the future, it would be well if the Acting
Attorney-General were to look into the matter.
The sentence passed on Lucas would be confirmed.
REGINA V. DAVID PETER8E.
Mr. Justice Buchanan mentioned this case in
chambers last week (Tuesday, 13th inst.), and the
Acting Attorney-General was asked to con-
sider a point which arose in it. The prisoner was
charged with assault and pleaded guilty. He was
sentenced to three months' imprisonment with
hard labour, thirty -seven days' spare diet with
solitary confinement, and in addition was bound
over to keep the peace for three months (after
expiration of sentence) in the sum of £80. The
point reserved for consideration was whether the
Magistrate had the power of binding the prisoner
over to keep the peace in addition to the punish-
ment inflicted for the assault.
The Acting Attorney-General (Mr. Searle) now
appeared and informed the Court that he had
looked into the matter, and was of opinion th%t
inasmuch as the prisoner, in addition to the
assault, had used threats, the Magistrate was
justified in binding him over to keep the peace.
Counsel referred to Ordinance 32 of 1827 and to
Buch.,1873, p. 17.
The Court declined to interfere with the sen-
tence passed by the Magistrate.
GENERAL MOTIONS.
PETITION OF SARAH B. LE8AB.
Mr. McLachlan, on behalf of petitioner, moved
for leave to sue in forma pauperis in an action
about to be instituted by her for the rendering of an
account in the administration of the estate of her
deceased husband. Referred to Counsel for his
certificate.
IN THE INSOLVENT ESTATE OF MABT M.
HITZROTH.
On the application of Mr. WaUrmeyer, the Court
ordered the issue of a commission to take the
evidence of insolvent's husband in regard to his
dealings with the estate.
IN BE THE GAPE STOCK-FARMING COMPANY,
LIMITED, IN LIQUIDATION.
Mr. Juta presented the official liquidator's first
report. — The Court confirmed the report and ap-
pointed Mr. Chas. Maasdorf attorney in the liqui-
dation proceedings. Publication to be made in
the Graaff-Reinet paper, in one Port Elizabeth
paper, and in the Government Gazette and London
Daily Telegraph.
PETITION OF WILLEM T. HOOOENDOOBN.
The Acting Attorney-General (Mr. Searle)
moved for authority to the Registrar of Deeds to
amend the description of certain property situated
in Rose-street, Cape Town, transferred to petitioner
in 1879, by setting forth in the transfer deed a
correct reference to the original diagram.
The Court granted a rule nisi calling upon all
persons interested to show cause why the order
should not be granted. One publication to be
made in the Government Gazette.
PETITION OF FBANCOI8 J. NAUDE AND WIFE.
Will — Legacy — Farm — Prohibition against
alienation — Bond — Registration refused
by Registrar of Deeds.
Mr. 8chreiner moved for authority to the
Registrar of Deeds to register certain mort-
gage bond executed by petitioners and oo-
proprietors in regard to the farm Tweefontein,
situated in the district of A berdeen, notwithstand-
ing that the will by which the wife's portion was
secured contained a restriction against
hypothecation. It appeared from the peti-
tion that under the will of her mother,
Mrs. Naude the second petitioner inherited
a third part or share of the farm Twee-
fontein, and the remainder of the quitrent place
marked No. 658, both in the division of Aberdeen.
The will, however, provided that the above-
mentioned properties should not be sold, made
away with, nor be hypothecated under mortgage
nor burdened by the spouses so long as the hein
might be living. On the 24th June, 1891,
the property was transferred in terms of
the will to Franoojs J. Nau4e, married in
288
community of property to Francina J. Naude
(born dn Preez). Subsequently the petitioners
and co-proprietors raised a lean on the properties
in question, and gave a bond, which, however, the
Registrar of Deeds declined to pass without an
order of Court, on the grounds that it was not
within his provinoe to go behind the transfer
aforesaid, or to inquire into the validity or other-
wise of the condition in the will. The petitioners
prayed that the Registrar of Deeds might be
authorised to register the bond.
Mr. Sohreiner: The Registrar of Deeds acted
correctly in refusing to register the bond without
an order of Court. The prohibition in the will is,
however, inoperative as there is no gift over.
(Sande, De prohibitione alienationis, cap. 1,
p. 46, and authorities there referred to, Van
Leeuwen, Roman-Dutch Law, vol. 1, p. 877.)
The following cases were also mentioned in the
course of the argument : " Drew v. Executor of
Drew," Buoh., 1876, p. 208 ; " Blignaufs Trustee v.
Cillier's Executors," Ruch., Supreme Court Reports,
1848, p. 206, and " Hiddingh's Trustee v. Hiddingh,"
2 Juta, 278.
The Chief Justice, in giving judgment, said
that as a matter of practice the Registrar of
Deeds was quite right in refusing to register the
bond until the matter had been brought to the
notiee of the Court. The authorities were so clear
that the Court could not give effect to what was
the evident intention of the testatrix. The
prohibition in the will was dearly null. The
legatees might, however, have prevented their
husbands from alienating the properties in ques-
tion. One of them bad, however, joined in the
present petition, and under these circumstances
the application would be granted.
THB CAPE TOWN TOWN COUNCIL V. THE
METROPOLITAN AND SUBURBAN RAILWAY
COMPANY.
Mr. Sohreiner appeared for the applicants, and
Mr. Juta for the respondents.
Mr. Bchreiner moved to make absolute the rule
nisi, granted on the 17th instant, restraining the
respondents from entering or trespassing upon
land transferred to applicants on the 4th July,
1891, excepting to an extent not exceeding thirty
feet as shown in the diagram ef the railway line.
Several affidavits were read, and the further
hearing of the case was postponed until to-morrow.
SUPREME COURT.
(IN CHAMBERS).
WEDNESDAY, OCTOBER 21.
[Before the Chief Justice (Sir J. H. DB VlL-
LIRRB, K.C.M.G.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
IN RE THE WALMER VILLAGE MANAGEMENT
BOARD.
The Acting Attorney-General (Mr. 8earle)
moved that the order as to costs, made in this
matter on the 29th September, might include the
costs of the previous postponement.
The Court granted the order.
THE CAPE TOWN TOWN COUNCIL V. THB
MBTROPOLITAN AND SUBURBAN RAILWAY
COMPANY.
Mr. Schreiner appeared for the applicants and
Mr. Juta for the respondents.
This matter, which was partly disposed of
yesterday, came on for further hearing.
The Chief Justice remarked that the Court
would like to hear Mr. Bchreiner as to the con-
struction whioh should be put upon Act No. 23 of
1889, seotion 6, sub-section a (the Act under which
the Company are empowered to construct the line
of railway to Sea Point). — Seotien 6 is to the
following effect : " All and singular the powers
whioh are by the Public Roads Aot No. 9 of 18JS8
bestowed upon the Commissioners of Roads in
regard to taking and acquiring lands and materials
necessary for the making or repairing of any such
main road as in the said Act is mentioned, or of
any works in connection therewith, are hereby
bestowed upon the directors precisely as if the
said powers were, mutatis mutandis, herein again
set forth, and as if the said railway wore a public
road." Provided : (a) u That the extent of the
land taken for the railway shall not exceed in
width 80 feet for the formation line, and sufficient
additional width required for the slopes, drainage,
stations, approach-roads, and all other works,
matters, and things which may be requisite or
necessary for the efficient construction, main-
tenance, and working of the said railway."
Mr. Schreiner, on behalf of the Town Council,
contended that the respondents were bound by
their Parliamentary plan, and that, inasmuoh as
" stations," goods-sheds, and similar erections did
not appear on the plan, the company could not now
expropriate land for such purposes. Section 6,
sub-section a, of the Aot must be read in conneo-
284
tion with the plan. Counsel also referred to
Sedgwiok's ease (8 Juta, 828).
The Chief Justice, in delivering the judgment of
the Court, said that it was quite clear, from
respondents* letter of the 6th October inst , that
they claimed the whole of the land in dispnte and
had expropriated it. If he (the Chief
Justice) were satisfied that this had been
a bona-fide expropriation under the Act,
he would have hesitated in interfering,
inasmuch as a legal question of very great
importance was involved in the matter, namely, as
to whether the Railway Company could not
expropriate more than the 80 feet in the event of
their requiring a station or other building. This
question was not now, however, before the Court,
and was of far too important a nature to be dis-
posed of in a summary manner on an application
like the present. He was satisfied, however, that
the respondents were not justified in saying that
they intended to expropriate this land, and thus
hold their supposed right in terrorem, as it were,
over the owners of the land. If there had been a
bona-fide intention to expropriate, then the ex-
propriation should have taken place, but in his
(the Chief Justice's) opinion there had been no
intention to build a station on this land, and
under these circumstances the applicants were
quite justified in applying to the Court to prevent
the expropriation. Nor was he satisfied that
more than 40 feet would be required for the slopes,
drainage, and other works, and under these cir-
cumstances the rule would be made absolute with
costs, except as regards the 80 feet, for which 40
feet between the fences would be substituted.
Leave would be given the respondents to apply
for removal of the interdict, on their satisfying the
Court that they required more land for bona-fide
purposes.
Mr. Justioe Buchanan remarked that the rule
nisi had been granted because the applicants had
established a prima facie case. The legal ques-
tion which had arisen in the present application
had not been decided, but it might be open for
future consideration.
SUPREMF COURT.
(in chambers).
PETITION OF GEOBGINA GLADSTONE.
On the application of Mr. McLachlan, leave was
given petitioner to sue by edictal citation in an
action against her husband for restitution of con-
jugal rights, failing which for divorce.
PETITION OF BRIDGET MCEWAN.
In this matter, the name of Mr. Webber was
substituted for that of Mr. Graham as certifying
counsel.
TUESDAY, OCTOBER 27.
[ Before the Chief Justioe (Sir J. H.
VlLLIERS), Mr. Justioe SMITH, and
Justioe Buchanan.]
Mr.
GENERAL MOTIONS.
IN RE THE MINORS YAN ZYL.
On the motion of Mr. Jones, authority was given
to the executrix testamentary of the late J. M. C.
▼an Zyl (on the Master being satified that the
debts were bona foU due) to raise a Bum of money
on mortgage ot certain farm property known as
Sarah's River, Running Stream, and Gorree,
situated in the district of Robertson, bequeathed
to the said minors, to satisfy certain liabilities
due by the estate.
PETITION OF CORNELIA M. THEUNISSEN AND
ANOTHER.
Mr. Juta applied for authority to the Registrar of
Deeds to amend certain transfer deeds of two lots
of ground, marked Nob. 18 and 14, in the village of
Riveredale, by recording the estate of the late J.
H. Theunissen as the owner of lot No. 14, and
Hendrina R. Smith as the owner of lot 13.
The Court granted a rule niti in terms of Act 28
cf 1881, section 7, calling upon all persons having,
or pretending to have, any right to the properties
in question to appear and establish their claims to
the same on the 20th November, or to be for ever
barred therefrom. One publication of the rule te
be made in the Government Qaeette and in the
Mossel Bay paper. An executor might be
appointed in the meantime.
IN RE THE MINORS VISAGIE.
Mr. Joubert moved for the appointment of
turatores ad litem to watch the interests of the said
minors in the partition of the farm Leeuwendrift,
in the district of Calviuia, in which they are eo-
proprietors.
The Court made the appointments in terms of
the petition.
IN RE THE UNION BANK, IN LIQUIDATION.
On the application of Mr. Juta, the Court sanc-
tioned an arrangement entered into between the
official liquidators of the bank and David McKeniie
and ethers.
9*&
PETITION OF JOHANNES 0. DB KORTE.
The Acting Attorney-General (Mr. Searle)
moved for an interdict restraining Bmile H. van
Noorden from erecting any partition or obstructing
the light and air upon certain properties in Loop-
•trect adjoining petitioner's premises. — The matter
was ordered to stand over pending the giving of
notice to respondent.
IN BE THE WALHBB VILLAGE MANAGEMENT
BOABD.
Mr. Jnta applied for leave to amend the descrip-
tion of certain lot of ground, No. 112, sold under
the Titles Registration and Derelict Lands Act,
1881, and presented the petition of Mr. H. P. du
Preez, from which it appeared that at the time the
petition was presented to the Court to have
certain erven in the village of Walmer
deolared derelict, and up to the 7th
October, 1891, when a oertain correction was
made on the general plan of the village of
Walmer, a deduction of lot No. 112 was endorsed
on the said plan as being transferred to Daniel
Johannes Rossouw on the 28th October, 1864, and
the said lot was so specified in the writ of attach-
ment, and sold in execution on 30th August, 1891.
That a letter was written by the petitioner to the
Registrar of Deeds on the 17th February, 1891,
asking for copies of the transfers required by the
High Sheriff for the purposes of the sale. That
on the oopy transfer and diagram of lot No. 112,
together with the transfers of the other lots sold in
execution, handed to the Government convey-
ancers te effect transfer to the purchasers, it was
discovered that the lot No. 112 (for which a copy
was granted by the Registrar of Deeds) was not
situated at Walmer, but in the village of Rich-
mond, division of Graaff-Reinet, and that the true
lot No. 112, village of Walmer, and whioh became
derelict and was attached, advertised, and sold as
such was registered on the 6th October, 1864, in
the name of Joshua Williamson Kemp. That the
petitioner's clerks employed to search in the
Deeds Office must have been misled by such
endorsement on the general plan, and assumed
that lot 1 12 was registered in the name of Daniel
Johannes Rossouw since it was so endorsed on the
said plan of the village of Walmer. Wherefore
the petitioner prayed that the previous order of
Court might be amended by the insertion, after
the words lot 112, Joshua Williamson Kemp,
instead of Daniel Johannes Rossouw, and the date
6th October, 1864, substituted for the date 28th
October 1864, and the extent one mergen sub*
stitoted for 70 square roods and 120 square feet.
When the facts had been stated by Mr. Juta,
The Chief Justice said: The Court will make
the order as prayed) but I must take this oppor-
tunity of saying, and I hope what I do say will
cense to the notioe of conveyancers generally, that
in my opinion oonveyancers should not leave these
important duties to inexperienced clerks. The
complaint has often come to my hearing that
inexperienced clerks are sent to the
Registrar of Deeds' office to make in-
vestigations and do what is necessary for
oonveyanoing. The oenveyanoer is paid for his
work, and if he has not sufficiently experienced
clerks, he should go personally. Here we have a
person who complains that his olerks have made
the mistakes — apparently inexperienced olerks.
Now if he had gone himself, and taken pains in
the matter, all these mistakes would never have
occurred. But this is not an isolated case ; the
complaint has often been made to me, especially
by the Registrar of Deeds, that many clerks have
to be taught their business by the Registrar of
Deeds instead of by the oonveyanoer himself, who
is paid for his work. In future the Court will
simply have to mulct conveyancers with heavy
costs in order to put an end to this practice. The
costs of the present application will be paid by the
petitioner.
Mr. Justice Smith remarked that this was the
third mistake that had been made in this matter.
SUPREME COURT,
(IN GHAMBSB8).
TUESDAY, NOVEMBER, 3.
[Before the Chief Justice (Sir J. H. DB
VILLIEK8), Mr. Justice SMITH, and Mr.
Justice BUCHANAN.
ADMISSION.
On the motion of Mr. Shiel, Mr. E. N. Baden*
horst was admitted as an attorney, subject to the
production ef an affidavit of additional servioe in
accordance with the order ef Court made on the
20th November, 1890 ; the oaths to be taken
before the Resident Magistrate of Colesberg.
GENERAL MOTIONS.
IN THB INSOLVENT ESTATE Off 8B BAST IAN
VALBNTYN VAN BEENEN.
The Acting Attorney- General (Mr. Searle
moved for leave to two of the trustees of
the said estate to institute an action, without the
286
assistance of their co-trustee, whose whereabout*
is unknown, against the executors of the late Mrs.
Frances Versfeld, to set aside certain notarial
deed and will executed by her in 1886.
The Court granted a rule nut, returnable on the
first day of next term, calling upon the absent
trustee to show cause why he should not be
removed, one publication to be made in the Gov-
ernment Gazette, The applicants to proceed with
the action and liquidate the estate
IN BE THE INSOLVENT ESTATE OF WILLIAM
W. MORRISON.
Trustee — Removal under Section 52, Ordi-
nance 6 of 1843.
Mr. Schreiner presented the petition of Mr.
George William Steytler, one of the trustees of
the above-mentioned estate.
It appeared from the petition that the estate
was surrendered on 17th October, 1888, and that on
the 6th November, 1888, the petitioner and Mr.
Duncan McDonald were appointed joint trustees ;
that the liquidation and distribution of the estate
had been duly oompleted, and the final aooount
confirmed on the 12th September, 1886 ; that the
second-named trustee, Mr. Duncan McDonald, left
the Colony some years ago, and his present
whereabouts are unknown; that the trustees of
the Gape of Good Hope Permanent Building,
Land, and Investment Society, as mortgagees, on
the 6th November, 1884, took over from the
aforesaid insolvent estate the immovable property
thereof for the sum of £760, and that they now
demanded transfer. The petition oonolnded with
a prayer that Mr. Duncan McDonald might be
removed from his trusteeship.
The Court ordered the removal of McDonald
as trustee, and conferred upon Mr. Steytler power
to prooeed with the liquidation of the estate as
sole trustee.
IN THE INSOLVENT ESTATE OF HENDRINA
JACOBA WILHELMINA KLBRCK.
On the application ef Mr. .Juta, leave was given
to tne assignees of the estate of My burgh & Co.
to amend their proof of debt against the said estate
by recording it as a preferent one, by virtue
of a deed of hypothecation instead of a con-
current one, as proved in error.
CARTRIDGE V. PARTRIDGE.
In this matter, Mr. Watermeyer was appointed
counsel for the plaintiff in the place of Mr.
Graham^ who is at present absent from the
Colony.
PETITION OF JOSEPH MOORE.
On the motion of Mr. Jones, the Court made
absolute the rule nut for the cancellation by the
Registrar of Deeds of certain mortgage bond
passed by petitioner's father, the late Thomas
Meore, in 1841, in favour of Jan Ferdinand
Socmen, by whom it was ceded to Thomas Bknker,
neither of whom can be found.
IN RE JOHN ALFRED HONEYBORNE, AN
ALLEGED LUNATIC.
Mr. Molteno applied for the appointment of a
curator ad litem in proceedings about to be insti-
tuted to have the said Honey borne declared to be
of unsound mind and incapable of managing his
affairs.
The Court granted a rule nisi, returnable on the
first Tuesday in next term, calling upon the
alleged lunatic to show cause why he should not be
declared of unsound mind and incapable of manag-
ing his affairs, and appointed Mr. Shiel his curator
ad litem.
IN RE THE MINORS MORONEY.
Mr. Shiel moved for authority to the
Master to pay out of the sums to the credit of
the minors in the Guardians' Fund an annual
allowance of £84 each to defray the costs of their
maintenance and education.
The Court granted the order on the Master
being satisfied that the amounts required were fair
and reasonable.
IN RE THE MINORS VAN HEERDBN.
On the application of Mr. Tredgold, the Court
granted leave to the tutor dative of the said minorj
to take transfer on their behalf in settlement of
their paternal inheritance of certain share in the
farm Bietkuil and Vaal Vallei, situated in the
district of Cradook, the property of their
mother, now married to Fredrik Prinsloo.
MORTIMER AND GO. V. HERBST.
Shares in bank in liquidation — Non-in-
dorsement — PI edge.
Where unindorsed shares had been pledged
as collateral security on an overdue pro*
missory note, and the shares were claimed
by the pledgor's brother, the Court
refused on motion to order the respondent
(the brother) to transfer the shares or to
give a power of attorney authorising
applicants to receive dividends due or to
become due in respect of the same*
Mr. Schreiner appeared for the applicants, and
Mr. Juta for the respondent.
287
This was an application for an older requiring
the respondent to transfer to applicant* certain
eight shares in the Western Province Bank, or
otherwise to grant a power of attorney authorising
them to reoeive from the liquidators of the said
hank all dividends due and to become due in
respect of the said shares.
It appeared from the affidavits that the shares
in question had been pledged by a brother of the
respondent as collateral security for a debt of
£179 due by him to the applicants on an overdue
promissory note. The shares were not endorsed,
and the respondent in his affidavit denied that he
had ever been indebted to the applicants, and
could not account for their being in possession of
the shares.
After argument, the Chief Justice said that this
was not a matter which ought to be disposed of
on motion. The respondent had ot rtainly not
satisfactorily explained how his brother had
become possessed of the shares, still he could be in
no worse position thai* a surety, and it was the
duty of the applicants to have first proceeded
against the principal debtor. The applicants might
bring an action in the ordinary course, but the
preset. t application would be refused with costs.
[Before Mr. Justioe SMITH, in Chamber-.]
8EABLE AND CO. V. BTANDBB.
Judgment — Execution — Return of nulla
bona — Share in immovable property —
Attachment.
Mr. Molteno moved on behalf of applicants for
an order interdicting the respondent from
alienating or mortgaging his property, situated in
York-street, George Town.
It appeared from applicants 1 affidavit that the
respondent was indebted to Messrs. Searle & Co.
in the sum of £13 3s. 5d., for which amount a
judgment was obtained by the said firm against
the respondent in the Resident Magistrate's Court
st George on the 17th October last. A writ of
execution ugainst the movable property of the
respondent was issued on the 19th October, and a
return of nulla bona was made. That the respon-
dent was entitled to quarter-share of some im-
movable property, situated in George Town,
valued at £100, and that he was attempting to sell
his share in this property with the object of
defeating his judgment creditors.
The Court authorised the Sheriff to attach the
immovable property in question, pending such
further proceedings as the applicants might be
advised to bring te have the property declared
executable.
2p
warren v. clem en ts.
Landlord and tenant — Act 20 of 1 856, section
26 — Removal of goods by tenant —
Attachment — Lien — Mandamus.
In this matter Clements, a monthly tenant of
Warren at Cape Town, on the last day of Octo-
ber, no reiit being then in arrear, moved from
Warren's house without having paid the rent, and
as Warren contended, with the intention to evade
payment of the same.
Mr. Hartill (for Warren) applied to the Resi-
dent Magistrate, Cape Town, for an interdict to
attach the tenant's goods in terms ef section 26,
Act 20 of 1856, which being refused by the
Magistrate, application wss now made to Mr.
Justice Smith for a mandamus compelling the
Resident Magistrate to grant the order, the case
of the Board of Executors v. Stigling, Buch. 1868,
p. 26 being relied upcn.
His Lordship refused the application for a
mandamus holding that the Board of Executors v.
Stigling did not apply, and that where a tenant had
removed his effects either before rent was due ; or
before an interdict had been granted; the goods
could not be followed up and that the landlord's lien
was lost.
SUPREME COURT
(IN CHAMBEB8)
TUESDAY, NOVEMBER 10.
[Before the Chief Justice (Sir J.
VILLIERS, K.C.M.G.) and Mr.
Buchanan.]
H. DB
Justioe
IN THE IN80LVENT ESTATE OF BERNHAKD
PILOBAM.
Insolvency — Ordinance 6 of 1843, section
28 — Set off— Leave given to amend proof
of debt.
Mr. Sohreiner appeared for the applicants (the
Cape of Good Hope Marine and Fire Assurance
Company), and Mr. Juta for the respondents (the
trustees in the insolvent estate of Bernhard
Pilgram).
This was an application for leave to the Cape
i
288
of Good Hope Marine and Fire Assurance Com-
pany to amend their proof of debt in the said
estate, by setting off against the same such sums
as have or may become dne to the insolvent in
respect ot thirteen shares in the said company,
now in liquidation, after satisfying the preferent
claim. It appeared from the affidavit of Mr. F. F.
Butherfoord, chairman of the applicant company,
that the insolvent was indebted to his company in
the snm ef £400, being the balance of a promissory
note originally for £600, as security for which
certain shares had been pledged, and that on
the 24th December, 1890, the company had
proved on the insolvent estate for the said debt.
That the insolvent was at the date of his in-
solvency a shareholder in the company and was
the registered holder of thirteen shares, and
that before his insolvency the directors had, in
November, 1890, agreed provisionally, and subject
to ratification by the shareholders, to sell and
dispose of the business of the company to the
Guardian Assurance Company, and that after-
wards, on the 8th December, 1890, and before
the said insolvency, the shareholders of the
company, at a meeting held for that purpose,
confirmed the sale, and resolved to liquidate
the oompany. That the thirteen shares belonging
to the insolvent were, prior to his insolvency,
pledged to the Cape of Good Hope Fire Assur-
ance and Trust Company as security for a debt,
and due notice of such pledge was given to and
accepted by Mr. Butherfoord, who after the
insolvency, and with the full knowledge and
concurrence of the trustees of the insolvent
estate, paid the dividends accruing on the said
shares to the Cape of Good Hope Fire Assurance
and Trust Company until their claim was satis-
fied, and that sinoe the latter claim has been
satisfied, dividends to the amount of £60 10s. fid.
have been awarded on the said shares ; and
deponent claimed the right to set off these dividends
against the company's claim on the insolvent
estate, and also any dividends which may hereafter
become due to the said estate. That in proving
the said claim against the insolvent estate deponent
omitted to state that he olaimed the right to Bet
off the refund which would accrue to the said
estate on the said shares (subject to the prior
claim under pledge in favour of the Cape
of Good Hope Fire Assurance and Trust Company).
The petition concluded with a prayer that the
Court would be pleased to allow Mr. Butherfoord
to amend his proof of debt on the insolvent estate
by deducting such sums as have become due since
the settlement of the claim of the said Cape of
Good Hope Fire Assurance and Trust Company,
or as may hereafter become due to the said estate
upon the shares registered in the name of the
intolvent.
Mr. H. Gibson, one of the trustees in the in-
solvent estate, denied that the dividends on the
thirteen shares referred to above had been paid
over to the Cape of Good Hope Fire Assurance
and Trust Company with the full knowledge and
concurrence of the trustees, and alleged that it was
only after the dividends had been paid over,
and on receipt by the trustees of the accounts,
that they became aware of the manner
in which the dividends on the said shares had
been dealt with, and that immediately on receipt
of the said accounts the trustees called upon Mr.
Butherfoord to value his securities, which up to
the present he had not done, and which he also
neglected to do in the proof of debt filed by him
in the said estate.
Mr. Sohreiner, in support of the application
contended that the principle established in
" Hiddingh's Executors v. Hiddingh's Trustee"
(4 Juta, 200) applied, and should govern the pre-
sent case.
Mr. Juta : There can be no set-off, unless the
debts and credits can be ascertained at the time
of proof. Counsel referred to the 28th section of
Ordinance 6 of 1843.
The Chief Justice, in giving judgment, said:
The case of " Hiddingh's Executors v. Hiddingh's
Trustee " is clearly applicable, and the correct-
ness of the principle may be tested by the case put
by me during argument. If the trustees of the in-
solvent had at any time sued the applicant oompany
for any dividend accruing due in the course of
the liquidation the applicants would have had a
good answer to such action, that answer being that
there was a larger sum which was due to appli-
cants, and I don't think this answer is any way
affected by the Insolvent Ordinance. In any case,
there is the decision, and I think the application
must be granted with costs ef opposition.
PETITION OF STEPHEN BENJAMIN MATTHEWS.
On the motion of Mr. Juta, leave was given
to attach certain assets devolving upon
members of the late firm of White Bros, out of
the estate of Mary Ann White (deceased), and
authority given to petitioner to sue by edictal
citation the said partnership for the recovery of
the amount of two promissory notes. Personal
service to be effected and citation to be made
returnable on last day of next term.
PETITION OF THE GENERAL ESTATE AND
ORPHAN CHAMBER.
On the application of Mr. Juta, leave was given
to attach ad fundindam jurisdictionem certain
funds in petitioners 1 hands, received on account of
Edward Gates Watson and two other heirs of the
•state of the late Thomas Watson, and to sue the
289
heirs by edictal citation in an action for recovery
•f certain judgment of the Supreme Court in
respect of shares in the Union Bank, registered in
the name of Watson's Estate.
IN BE THE CAPE STOCK-FARMING COMPANY,
IN LIQUIDATION.
Company in liquidation — Application for
appointment of two liquidators (in addition
to one already appointed) refused.
Mr. Schreiner appeared for the applicant, and
Mr. Jnta for the respondent.
This was an application for the appointment of
two additional official liquidators in respect of
the winding up of the said company.
Mr. Schreiner read the petition of Mr. John
Eyre Vardy, of Port Elizabeth, in his individual
capacity and representing the London directors
and liquidators. It appeared from the petition
that the company was incorporated in England
under the Joint-stock Companies Acts, 1862 to
1867, and that it carried on its operations in this
colony until 3 let August, 1891, when it was plaoed
under the operation of the Winding-up Act of
1868, when Mr. C.J. Brugman, of Graaff-Reinet,
manager of the Midland Agency and Trust Com-
pany, was appointed liquidator. The petition
went en to say : That your petitioner is in-
dividually a shareholder in the company, holding
fifty shares of £100 each, and in respect of
which £50 per share has been paid up;
that your petitioner has recently ascertained
that at a general meeting of the company,
duly convened, and held at its offices, No. 2,
Huifolic-lane, Cannon-street, in the City of
London, on the 14th September last, the following
resolutions were passed : " That it has been
proved to the satisfaction of this meeting that the
company cannot, by reason of its liabilities, con-
tinue its business, and that it is desirable to wind
up the same, and accordingly that the company be
wound up voluntarily"; and "That John
Matheson Maodonald, Alexander James Macdonald,
and Alfred George Kenshaw be, and they are
hereby, appointed liquidators for the purpose of
such winding up." That the three persons named
in the last-mentioned resolution are respectively
directors of the company. That on the 18th
September, 1891, John Matheson Macdonald and
Alfred George Renshaw, two of the said liquida-
tors and directors of the company, acting in pur-
nance of section 133, sub-Bection C, of the Com-
panies Act, 1862, under their hands and seals,
and under the seal of the company, exeouted a
power of attorney in favour of your petitioner,
appointing him the attorney in this oolony of the
company, and of the liquidators thereof, with the
powers therein set forth, including the power to
delegate any of the powers and authorities
thereby vested in him. That your peti-
tioner has by the mail from England
which reached Port Elizabeth on the 21st day
of Ootober instant received advices from
the said liquidators and directors of the company
that the High Court of Justice in England did, on
the 30th day of September, 1891, make an order
recognising the placing of the oompany under
voluntary liquidation, and the appointment of the
said John Matheson Maodonald, Alexander James
Macdonald, and Alfred George Renshaw as liquida-
tors, is terms of the resolution hereinbefore oited.
That your petitioner is a partner in the firm of
Maodonald, Vardy & Co., of Port Elizabeth, which
firm was, by a power of attorney dated the 13th
April, 1882, appointed generally to act on its
behalf in this colony, and he has been concerned in
the management of the company's affairs, and is
intimately acquainted with all the details of the
acoounts in the Colony. That as a shareholder,
and representing the interests of the shareholders
and debenture holders in England (being the
majority of both), through the power granted to
your petitioner by the said liquidators appointed
in England, and recognised by the High Court of
Justice there, your petitioner submits that
it is highly desirable and expedient in the interests
of all oonoerned that some person or persons should
be joined with the said Christoffel Jacobus
Brugman to represent and protect the interests of
such shareholders and debentureholders other than
the estate of the late J. B. Evans, who was the
vendor of the landed estate (with other property)
to the company. That your petitioner has
been requested by cable advices this day re-
ceived from the English liquidators above named
to apply for the appointment of himself as co-
liquidator with the said Christoffel Jacobus Brug-
man. That your petitioner considers that it will
be of advantage that some disinterested and
qualified person be further appointed to act as co-
liquidator with himself and the said Christoffel
Jacobus Brugman. That Frederick William
Ramsay Denny is an accountant carrying on
business at Port Elizabeth, and a person well
versed in all matters connected wth the liquidation
and winding up of estates. That your petitioner
and the said Frederick William Ramsay Denny
are fit and proper persons to be joined with the
said Christoffel Jacobus Brugman as official
liquidators of the said oompany with the same
powers. Wherefore your petitioner prays that
your lordships may be pleased to appoint him and
the said Frederick William Ramsay Denny to act
in conjunction with the said Christoffel Jacobus
Brugman as official liquidators of the said com
pany with the same powers which have been
granted to him, or that your lordships may make
290
each appointment or grant such relief as may seem
meet in the premises.
Mr. Jata opposed the appointment of Mr.
Vardy, but had no objection to the appointment
of Mr. Denny as a oo-liquidator with Mr. Brngman.
The Chief Justice, in giving judgment, said
that he had no doubt but that if the olaims of Mr.
Vardy had been brought to the notice of the Court
when the application was made for placing the
company under the Winding-up Act, he would
have been appointed a co-liquidator. Mr. Brng-
man, since his appointment as liquidator, had con-
ducted the liquidation in a satisfactory manner
and until the company could show that he had
failed in his duty, the Court ought not to depart
from its original order. The application would
consequently be refused, costs to come out of the
estate.
SUPREME COURT,
(IN CHAMBERS.)
TUESDAY, NOVEMBER 17.
[Before the Chief Justice (Sir J.H. DK ViLLIEBS,
K.C.M.G ) and Mr. Justice BUCHANAN.]
IN BE GIDBY.
On the application of Mr. Shiel, Mr. Lennox
Llewellyn Giddy was admitted as an attorney and
notary, the oaths to be taken before the Registrar
of the Hasten* Districts Court, Graham's Town.
IN RE MCKENZIE.
On the motion of Mr. Jonss, Mr. Martin Edward
MoKenzie was admitted as a notary, the oaths to
be taken before the Resident Magistrate of Port
Elizabeth.
IN BE THE CAPE CENTRAL BAILWATS, IN
LIQUIDATION.
Mr. Sohreiner presented the second annual
report of the official liquidator of the above com-
pany, and moved for the sanction of the Court to
a supplementary agreement entered into with the
vendee on the 6th October last, by whioh the time
for payment was extended.
The Court granted the required sanction, and
made the usual order as to publication.
SUPREME COURT.
FRIDAY, NOVEMBER 20.
[ Before the Chief Justice (Sir J. H. DE VlLLIERf,
K.C.M.O.), Mr. Justice SMITH, and Mr.
Justioe Buchanan.]
PROVISIONAL ROLL.
PAARL BANK V. CLEMEN.
Mr. Joubert moved for provisional sentence on
a mortgage bond for £800, with interest. Pro-
visional sentence granted and property declared
executable.
JOHNSON V. VADE.
On the motion of Mr. Tredgold provisional
sentence was granted on a promissory note for
£92.
SMITH V. CBOESEB.
On the appliontion of Mr. Maskew provisional
sentence was granted on a promissory note for
£82 18s. 6d.
PINDLAY AND TAIT V. HEBBST.
On the motion of Mr. Jones provisional sentence
was granted on four promissory notes of £10 eaoh.
DU TOIT V. LODW.
Mr. Sohreiner appeared for the plaintiff and Mr.
Juta for the defendant.
It was agreed in this matter that the prinoipal
case should be gone into.
NOBLE V. FBI8BT.
The Acting Attorney-General (Mr. Searle)
moved for provisional sentence for £12 15s., being
the amount paid by the plaintiff (in his rapacity as
Clerk of the House of Assembly) to the defendant
upon a false certificate signed by the said defen-
dant as a witness before the Select Committee on
" Griqualand West Trade and Business," in July,
1891.
The Chief Justice: This appears to be a cri-
minal matter.
Mr. Justice Smith : In cases in which a nan is
to be criminally prosecuted it is desirable that the
prosecution should precede the civil action.
Mr. Searle: The law is dear that the oivil
remedy is not barred by a criminal prosecution.
Cases on the sublet have been decided to that
effect in the Eastern Districts' Court.
Provision*! sentence grantee],
291
ELDBR'S EXECUTORS V. LINDEB.
On the motion of Mr. Joubert provisional
sentence was granted for the sum of £97 7s. 6d. t
cash advanced.
REHABILITATIONS.
On motion from the bar the rehabilitation of
the following insolvents was granted: George
Wilhelm, Simon Hercules Fontein, Johannes
Christian Kroger, Charles Lilford, Andrew Stew-
art, Benjamin Johannes Smit, Daniel Nioolas
Johannes dn Toit, Christian Andries Johannes
Cronje, and Geerge Butler Carle.
GENERAL MOTIONS.
GAPE OF GOOD HOPE BANK (IN LIQUIDATION)
V. RET. W. E. BELSON.
Company — Bank in? liquidation — Shares —
Contributory — Life Policies — Cession with
alleged object of defeating creditors —
Attachment — Sale — Rule nisi made ab-
solute
Mr. Schreiner moved for an order making
absolute the rale msi for the attachment and sale
by the Sheriff of oertain two policies of life
assurance, effected by the respondent with the
South African Mutual Life Assurance Society, in
satisfaction of the amount of call on 118 shares
in the said bank, registered in the respondent's
name. Due service had been made upon the
respondent at Buda-Pesth, who stated that
he had ceded the insurance policies apparently to
one F. Ross Parkes, also resident at Buda-Pesth,
who was paying up the premiums. There was no
cession of the policies registered in the books of
the society, which should be done according to the
terms of the trust deed. Mr. Schreiner contended
that Mr. Parkes must have known the position of
affairs when he took over the polioies.
The Chief Justice : The respondent has had due
notice. The rule will be made absolute with
costs.
INSOLVENT ESTATE OF NICOLA AS J BOTHA
•
Mr. Juta moved for an order authorising
Thomas S. Shoard, one of the trustees in
the said estate, to realise the assets therein, and
frame liquidation accounts, without the assistance
of his co-trustee, Paul Nel, who has left the
Colony without appointing any person to act in
the matter.
The Qourt granted a rule nisi calling upon Mel
to show cause why he should not be removed from
his trust, personal service to be made ; Sheard to
be authorised to administer the estate without the
assistance of his co-trustee.
PETITION OF IDA MOSS.
Mr. Shiel applied for leave to sue by ediotal
citation in an action against petitioner's husband,
Henry Charle* Moss, for divorce by reason of his
adultery and cruelty, and for the custody of the
two minor children.
The Court ordered the matter to stand over for
the present.
BBOINA V. GHBISTIAN GABOLD8.
Vagrancy— Act 23 of 1 879— Con viction under
section 2 — Appeal.
This was an appeal from a conviction and sen-
tence by the Resident Magistrate of Namaqualand
in criminal proceedings instituted under the
Vagrancy Act.
Mr. Schreiner appeared for the appellant, who,
he said, was charged with contravening section 2 of
Act No. 23 of 1879, and on conviction was sen-
tenced to take service for three months at a
remuneration of 10s. per month.
The Acting Attorney-General said he did not
intend to advance any arguments on behalf of the
Crown.
The Chief Justice observed that the appellant
might have given a clear answer to the constable
when questioned as to his means of support.
Mr. Searle thought that section 2 of the Act
should be liberally interpreted, as it was somewhat
vague.
Mr. Schreiner said it had not been proved that
the appellant was not possessed of sufficient means
of support. He had a horse and gun, and also
said that he had some stock in the Bokkeveld.
The Chief Justice said that as the Acting
Attorney-General did not object to the quashing
of the conviction, the Court would give an order
to that effect. The terms of section 2 were
very wide, and the Magistrate should have used
some little discretion in dealing with it. He did
not think the section was intended to apply to
cases of this kind.
[Appellant's Attorneys, Messrs. van Zyl &
Buissinne.]
MANTLE V. MANTLE.
This was an action breught by the wife for
restitution of conjugal rights.
Mr. Castens appeared for the plaintiff. The
defendant was in default, and had been sued by
292
ediotal citation, but personal service could not be
effected.
Martha Mantle deposed that she was married to
William Mantle on the 6th March, 1888, at
Kimberley, and left there immediately for Philip's
Town, where they resided for two years. She
then went to Germany, where she remained for two
years, at the expense of her family. On her
return to the Colony her husband joined her at
Port Elizabeth, where they cohabited for about
six months. From Port Elizabeth she went to her
uncle's at Philip's Town, and since then she had
never set eyes on her husband. She went to
Kimberley in search of him, but could not find
him. Since 1889 he had never contributed any-
thing towards her support or that of her
children. At present she kept a boarding-house.
She had never had any serious quarrel with her
husband, and could not account for his desertion.
She had received letters from him since his dis-
appearance, but had destroyed them.
The Chief Justice said that the Court would
grant a deoree for the restitution of conjugal
rights, and order the defendant to return to or
receive the plaintiff on or before the 1st June
next, failing which, a rule would be issued calling
upon the defendant to show cause by the last day
of the June term why a decree of divorce should
not be granted. Personal service on the defend-
ant, if possible; failing which, service on his
father in Germany.
BABBINGTON V. BARNARD.
Trespass — Action — Damages — Right to fell
timber under agreement — Boundaries.
Sir T. Upington, Q.C., and Mr. Juta, for
plaintiff; Mr. Sohreiner, and Mr. Molteno, for
defendant.
This was an aotion instituted to recover damages,
laid at the sum of £500, for wrongful trespass
upon the property of the plaintiff, Mr. J. W. S.
Harrington, of Portland, in the Knysna division,
against Mr. Jacs. L. Barnard, the proprietor of an
adjoining farm. On the 12th July, 1888, an agree-
ment was entered into between the parties, by
which Barrington granted Barnard certain rights
of wood-cutting on a certain portion of his property.
The plaintiff's allegation was that defendant had
trespassed on other property and destroyed a very
valuable piece of forest land. The plea alleged
that accoiding to agreement there had been no
trespass. There was a olaim in reconvention for
wood seized by plaintiff.
Mr. J. W. S. Barrington deposed that when the
agreement was entered into in 1888 the boundaries
pf the forest land he desired to let on lease were
distinctly pointed out to the defendant. A plan
was also drawn up, and the agreement was written
by Mr. Attorney Robinson, of the Knysna. The
defendant trespassed on the left side of his
property, and cut away a lot of valuable timber.
He gave permission to defendant to make a slip-
path for the purpose of getting his wood
out from the Portland River to the westward.
This was about April, 1890. When he learned
that there had been a trespass he wrote
to the defendant and notified him that he had
cDnfiscated the fallen wood. He received no reply
to his communication. The damage to the forest
he estimated at £600, as the bush contained
specially valuable timber. He claimed trespass
both to the left and the right of the slip-path.
The value of the wood he seized was about £162,
or the amount of double the licence money. If he
was buying in the market, he would not give more
than £81. Every tree in the leased forest land had
either been girdled or hacked about.
By the Court : The diagram or plan was
attached to the letter to the attorney at Knysna
prior to the agreement being entered into. There
was no dispute about the ren' s, which had been
paid.
SUPREME COURT.
MONDAY, NOVEMBER 23.
[Before the Chief Justice (Sir J.H. DE Villiers
K.C.M.G.), Mr. Justice Smith, and Mr
Justice Buchanan.]
RB PAARL BANK, IN LIQUIDATION.
Sir T. Upington said he had been asked to men-
tion to the Court the matter of the Paarl Bank (in
liquidation), one of the motions passed over the
other day for the purpose of hearing the case of
Barrington v Barnard. He was informed that
this matter required to be dealt with as soon as the
Court could conveniently take it. There were
certain compromises proposed, and he moved that
the petition of the liquidators, Messrs. De Villien,
Perold, and Steytler, be now considered. The list
of compromises had been duly published in the
Government Gazette and other papers, in accord-
ance with an order of the Court. A n objection
had been filed by the liquidators of the
Western Province Bank against the proposed
compromises by the Messrs. Relief, but their
objection had been withdrawn, and the liquidator!
were of opinion that, in the interest of th,e credi-
293
ton of the Paatl Bank, the compromises should be
confirmed. In respect to the compromise of S. P.
Mslherbe, they were of opinion that it should be
postponed for the preser t.
The Court sanctioned the confirmation of all the
proposed compromises with the exoeption of that
of S. P. Malherbe.
The following is a list of the proposed com-
promises :
Rev. Gilles van de Wall offers for his liability
(£5,000) on twenty shares, a oash payment of
£3,200, and to surrender a fixed deposit of £700
with interest in the Paarl Bank.
Executrix Estate late Charles Daniel Cillie offers
for her liability (£5,000) on twenty shares, a cash
pa>ment of £1,500, with interest from 12th
February, 1891.
Jacob Petrus Goosen offers for liability (£750)
on three shares, cash payment of £600, with interest
from same date.
Johannes H. A. Basson offers for his liability
(£16,250) on 65 shares, a cash payment of £500,
with interest from same date.
Stephanas Francois du Toit offers for his
liability (£16,500) on 65 shares, a cash payment of
£1,150, with interest from same date.
Catherina Sophia Bosman (born Louw), execu-
trix testamentary in the estate of the late Jan
Daniel Bosman, offers for her liability (£3,780) on
fifteen shares, a oash payment of £1,000, payable
in yearly instalments of £250 each.
Francois Stephanas Cillie offers for his liability
(£500) on two shares, and other liabilities due to
the bank en promissory notes, direct £611, and
indirect £135, a cash payment of £200, with interest
from 12th February, 1891.
Petrus Jacobus Retief offers for his liability
(£8,750) on fifteen shares, a oash payment of £750,
with interest from the same date.
Abraham Barend de Villiers, P.J. son, offers for
his liability (£6,000) on twenty-four shares, a cash
payment of 5s. 3d. in the £, with interest from
tame date.
Willem Daniel Malherbe offers for his liability
(£12,500) on fifty shares, a cash payment of £1,500,
and fixed deposit in Paarl Bank of £150, with
interest from same date.
Adriaan Albertus Furtur offers for his liability
(£4,250) on seventeen shares, a oash payment of
£300.
Jan Stephanas de Villiers, J. son, offers for his
liability (£3,750) on fifteen shares, a cash payment
at £1,250, and to transfer all rights to fixed and
floating deposits standing in his name in the Paarl
Bank, amounting to £523 0s. 6d., with interest
from 12th February, 1891.
Petrus Jacobus Malherbe, GicLson, offers for his
liability (£7,750) on thirty-one shares, a cash pay-
ment of £1,200, with interest from same date
Gideon Joubert, W. son, offers for his liability
(£5,250) on twenty-one shares, a cash payment of
£2,000, and to transfer fixed deposit standing in the
name of his daughter in the Paarl Bank amount-
ing to £100 and interest due thereon to the liqui-
dators, with interest from the same date.
Francois J. Hugo, P.son, offers for his liability
(£7,500) on thirty shares, a cash payment of
£2,000, with interest from same date.
Willem Adolph Krige offers for his liability
(£4,000) on sixteen shares and other liabilities on
promissory notes amounting to £155, a cash pay-
ment of £600, with interest from same date.
Isaac Jacob de Villiers, A.B.son, offers for his
liability (£1,600 on six shares and promissory
notes amounting to £1,688 2s. 10d., a cash payment
of £800, and certain erf with the buildings thereon
and valued at £150, with interest from same
date.
Stephanus Petrus Malherbe, jun., offers for his
liability (£248) on promissory notes a cash pay-
ment of £100, with interest from same date.
[Postponed.]
Estate late Roeland Abraham Perold ; executrix
offers for liability (£5,000) of estate on twenty
shares and promissory notes, direct £75, and indirect
£15, the sum of £100, payable £50 in cash, and
£50 within twelve months.
Christian Lodewyk Wicbt offers for his liability
(£3,750) on fifteen shares, a cash payment of £1,375,
and to surrender all fixed and floating deposits in
the Paarl Bank amounting with interest to £2,099
9s. Id., with interest from 12th February, 1891.
Godlieb Wilhelm Anthonie de Villiers offers for
his liability (£2,750) on eleven shares, a oash pay-
ment of £750, with interest from same date.
Jacob Daniel Retief, P.son, offers for his
liability (£1,500) on six shares, a eash payment of
£300, with interest from same date.
Francois Hermanns Retief, P.son, offers for
his liability (£4,000) on sixteen shares, a cash
payment of £250, with interest from the same
date.
Isaac Bisseuix offers for his liability (£3,750)
on fifteen shares, a cash payment of £500, with
interest from same date.
Jozua Petrus Malherbe offers for his liability
(£4,500) on eighteen shares, and as endorser on a
promissory note due by S. P. Malherbe to the
bank of £139, a cash payment of £550, and to
surrender a fixed deposit receipt of £200 with
interest.
Jacobus Johannes le Roux, Joz.son, offers for
his liability (£3,750) on fifteen shares, and lia-
bilities on promissory notes amounting to £700
direct and £270 indirect, a cash payment of
£1,250, and an expected inheritance out of the
estate of the late David Marais, A. P.son, sub-
ject to certain contingencies, and valued at £359.
Jacob Hugo offers for his indirect liability of
£428 14s. a cash payment of £107 8s. 6d.
294
BARBIKOTON V. BARNARD.
The hearing of this action wag resumed,
Daniel Prinsloo deposed that by order of the
plaintiff he out the line of demarcation. Barnard
had cut away timber outside his boundary.
George Bex Atkinson dep< Bed that in April last
he went on Barrington's property, and heard men
cutting wood there. He was going down to his
work along the slip-path, and saw Barnard, who
taunted him with waiting until he had made the
road before commencing work. He also told
witness that he had to pay Barrington for the
road, and his men had felled two trees lower
down, as he did not see why he should work for
nothing. In oonsequenoe of seeing Barnard's men
working on what he considered was Barrington's
property, he sent a communication to the latter.
The forest out down was a valuable piece of
property. He considered that £500 was not too
large an amount for the timber as it stood, but it
would be too high for the market. It was close to
Barrington's homestead. He valued the wood at
£200, but the land and wood together would be
worth between £400 and £500. It would take a
generation to replace the yellowwood trees on the
ground where they had been cut down.
Gross-examined : The land in question was in
extent between twelve and fifteen acres. Large
numbers of trees were cut down, and had been
removed by Barrington; there were very few
left standing.
Jacobus Nioplaas Niemand, Hendrik Westworth,
Andries tf ensburg, Frank Kitohing, woodcutters}
deposed to the position of the disputed property.
Arthur William Robinson, attorney, resident at
the Knysna, deposed that he drew up a draft
agreement between the parties, and the boundaries
of the ground were duly defined and explained
both to plaintiff and defendant. A slight altera-
tion was made in the agreement, which was
initialled by the defendant.
For the defence
Jacobus L. Barnard, the defendant, deposed that
he had resided for eighteen years in the Kynsna
district. In 1888 he made an agreement with the
plaintiff to out wood on a certain portion of his
property. The land was clearly defined on a
sketch plan attached to the agreement ; it
was to run from the watershed of the
Portland River to that of the Knysna River.
Work was commenced on the disputed land on the
11th April last. The slip-path mentioned ran
through that ground. He was away at Middel-
burg on " togt " for some weeks, and ordered his
woodcutters not to trespass on Barrington's pro-
perty. When he returned from Middelburg he
received Barrington's letters. His men had not
gone beyond his instructions. He valued the
wood cut at £110; all he removed was wood
valued at £7 15s. In his opinion he had a loss of
£60 by the stepping of the work; some
of the cutters were working ont old
debts. When the men were stopped working by
Barrington they scattered and sought other work.
He never bad any explanation of the letter sent to
Robinson at the Knysna. The gronnd in dispute
was in extent about 8£ morgen. Plenty of wood
was left standing ; everything was not destroyed.
Cross-examined : He never saw the plan pro-
duced, nor did he see the letter sent to Robinson
by Barrington. He did discuss the boundaries
with the plaintiff, but not with Robinson. He did
not know the exact date when he initialled the
alteration in the agreement. The undisputed bush
was of little value. When he went on " togt " he
left bis son in charge of the wood-cutting. He
valued the piece of disputed forest at £260.
Stephanus Marthinus Barnard, son of the defen-
dant, deposed that he drew the sketch plan
produeed. He looked after the men during his
father's absence, and never saw them working
over the line fixed under the agreement with
Barrington.
Cross-examined : He received letters from
Robinson during his father's absence, but did not
deal with them because he did not know what
arrangements had been made.
Adam Johannes Barnard deposed that he knew
both parties to the suit. He had been connected
with forest work for about forty years. In May
last he worked in the disputed forest for Barnard,
but was not present when the boundary was
pointed out. He and others with him worked en
both sides of the slip-path. He had no idea in
working there that he was committing a trespass.
Paul Gerber, Jacobus Johannes Barnard, Hen-
drik Lawrence, and Andries Zeelie having given
evidence,
Mr. Barrington, re-examined by the Court,
pointed out that the " plaats " so frequently men-
tioned was situated to the left of the photograph
produced, and had been denuded of timber by the
defendant. The " plaats " claimed by the defend-
ant was ordinary veld and extended four or five
miles.
The Court having been addressed by counsel,
the Chief Justice said the first question in this
case was, what was meant by the "nek of
the plaats/' The Court was quite satisfied that
the " nek of the plaats " was the one contended
for by the plaintiff, as it was a pronounced feature
in the landscape. He was satisfied that the plain-
tiff himself must have understood that the
" nek " he contended for was the one meant
The only difficulty he had experienced in this case
was the very great difficulty as to whether the
defendant understood what particular " nek "
was meant; but on the whole he
had oome to the conclusion that all
295
the circumstances pointed to the defendant
being also of the same opinion as the plaintiff.
From the evidence of both plaintiff and Robinson,
the Court was perfectly satisfied that before
defendant went to Robinson a plan had been
drawn and explained to him. That being so, the
Court disbelieved him on one important point, and
this also threw a doubt on tbe rest of his evi-
dence. He certainly believed the evidence of the
plaintiff when it was stated that the defendant
pointed out to his workmen the line cut
by Prinsloo as the one to be adopted.
He was satisfied that the defendant knew
that the line claimed by the plaintiff was the
one to be adopted. Another point was that the
defendant himself said that the part of the forest
in dispute was the most valuable portion, and it
seemed improbable that he should have left the
most valuable portion till the end. According to
the usual practice of wood-cutters, this part would
have been selected first. In favour of the
defendant it might be stated that it would be ex-
tremely improbable that he would have taken
upon himself to out down wood in this particular
forest, knowing that at any moment Bar-
riogton might swoop down upon him. The
witnesses for the plaintiff had made a far more
favourable impression en his mind than those for
the defendant, but on the whole he believed that
the plaintiff had made out his case, and was
entitled to judgment with costs. If he kept the
wood, which was valued at £81, he should have
judgment for £60 damages and oosts. He would
like to hear from Mr. Schreiner whether his client
would elect to take the wood, because if he did
so, it would affect the question of damages .
After consultation, Mr. Schreiner said that his
client would prefer to abandon the timber cut
down to the plaintiff.
Judgment was then formally entered fer £60
damages and costs, the plaintiff to retain possession
sf the timber
Their Lordships concurred.
[Plaintiff's Attorneys, Messrs. van Zyl A Buis-
sinne ; Defendants' Attorneys, Messrs. Soanlen &
»yfret.J
SUPREME COURT.
TUESDAY, NOVEMBER 24.
[Before the Chief Justice (Sir J. H. DB
VILLIERH, K.G.M.G.) and Mr. Justice
Buchanan.]
shawk v. honeybobne.
De lunatico inquirendo.
i
2q
Mi. Molteno appeared for the plaintiff, and
Mr. Shiel for the defendant.
This was an action to have John Alfred Honey-
borne, aged twenty-six, declared of unsound mind,
and for the appointment of a curator of his person
and property.
Mrs. A. B. Shawe stated that the defendant was
her brother, and that he had resided with her for
a year. He was net a lunatic, but was weak-
minded, having been born so. He was also
paralysed in his right leg and arm, and quite
helpless. About six years ago he spent several
months in the Old Somerset Hospital. He had
inherited money both from his mother and father.
Mr. George Brittain was appointed trustee of the
money he had inherited from his father, and that
from his mother was absolutely free. Witness was
anxious to be appointed to look after the property
in conjunction with her husband.
Cross-examined by Mr. Shiel : Her brother was
not a lunatic. He had been sent to the Old
Somerset Hospital because his mother thought he
would be better looked after in that institution
than at heme.
Dr. Julius Petersen (examined) stated : He had
visited the defendant some weeks ago and found
him mentally and physically weak, in fact an
idiot. He was not fit to take care either of his
property or person, and there was no chance of
recovery.
Cross-examined by Mr. Shiel : Defendant's
inability to look after himself was due to paralysis.
He was very weak-minded. He (witness) would
draw no distinction between idiocy and lunacy.
Dr. F. Fismer expressed a similar opinion.
Mr. H. B. Shaw, brother-in-law of the defendant,
stated that the total amount of the money the
defendant had inherited was about £600, bringing
in some £22 per annum interest. The expense of
keeping the defendant came to about £4 per month.
Mr. Shiel said that in discharge of his duty as
curator ad litem he had visited the defendant on
two occasions; and although he had found his
oendition similar to that described by the medical
witnesses, still the defendant did not appear to be a
lunatic. His memory was fairly clear on some
subjects, and his conversation was coherent. He
296
did, however, appear to be weak-minded, and
clearly could not look after his person or property.
He (Mr. 8hiel) did not ft el justified in consenting
to the defendant being declared of unsound mind.
At the same time he was of opinion that the
defendant required some one to look after his
person and property.
The Court declared that the defendant was
unfit to take care of his person and property and
that Mr. Shaw should be appointed curator of the
same, the sum of £4 to be paid monthly for his
support and maintenance, this sum to be paid out
of the interest of defendant's money, ind any
deficiency out of the capital inherited from his
mother and which was in the hands of the
Master.
[Plaintiff's Attorney, Messrs. Fairbridge &
Arderne.]
HATCH V. HATCH.
Marriage — Xullity — Prima facie evidence
that defendant's husband by a former
marriage wss alive when she married
plaintiff — Bona fides of both parties —
Ante-nuptial contract — Deed of separation
— Custody of child issue of second marri-
age — Maintenance.
Sir T. Upington, Q.C., for plaintiff, and Mr.
oonreiner for defendant.
This was an action to set aside the marriage on
the ground that defendant's husband, C. A.
Tadman, was alive at the time she married the
plaintiff. Further claims were made for the
setting aside of the ante-nuptial contract and a
subsequent deed of separation, the restora-
tion of certain property, and payment
of certain debts. The defendant admitted
her marriage with Tadman, but stated
that she had married Hatch bona fide
believiig that Tadman was dead, from a
letter the bad reoeived to that effect from Tad-
man's tister. ^he claimed the custody of the child
born while f he was living with Hatch, admitted
the ante-nuptial contract, the deed of separation,
and debt, whichishe was willing to pay.
Mr. G. Hatch, the plair tiff, stated that he
was carry iLg on business as an outfitter in A dderley-
street, Cape Town, and that he was married to the
defendant in 1886, believing her to be a widow.
She told him that Tadman died in prison at Chat-
ham. He made the acquaintance of the defendant
in Port Elizabeth, where he himself was eariying
on business, and where she was employed in a
drapery store. The separation took place in
March of the present year, and s|noe then he had
paid her £8 per month. About five months ago he
heard that Tadman was alive, and he made
inquiries which confirmed the report.
Pressed by Mr. Sohreiner to forego his monetary
claims witness distinctly declined.
Mrs. M. A. L. Hatch, the defendant, stated that
she was married to Tadman in 1879, left him in
1882, saw him in 1884 at Aliwal North, and
since then had never seen him. In 1886 she
received a letter saying he was dead. The letter
purported to be written by Mrs. Loft, a sister of
Tadman's, and she reoeived it by post in the
ordinary way. The child by her former marriage
was at Zonnebloem College, and was not supported
by her. She wished to keep the child by the Utter
marriage herself. The little girl, who was five
years of age, was quite happy with her, and did
net wish to live with her father.
After counsel had addressed the Court, the
Chief Justice said they were satisfied that there
was prima-facU evidence that Mr. Tadman was
alive at the time of the defendant's marriage
with plaintiff, but they were also satisfied that the
defendant believed him to be dead at that time.
Under the circumstances, the plaintiff ought to be
reasonable, and they would suggest the payment to
the defendant of a lump sum for the support of
the child, which she was clearly entitled to keep.
After discussion, the Court declared that the
ante -nuptial contract, the marriage, and the deed
of separation were null and void, that the defen-
dant was entitled to the custody of the child, and
that the plaintiff should pay the sum of £10o in
lieu of maintenance, plaintiff to pay Lis own
costs.
[Plaintiff's Attorneys, Messrs. van Zyl & Buis-
sinne ; Defendant's Attorneys, D. Tennant, jr. J
WATSON Y. BURCHELL'S EXECUTORS.
Marriage in community— Will — Disposition
of entire estate — Specific legacy — Abate-
ment — Jus accrescendi — Alleged renunici-
ation ot rights by acquiescence— Declara-
tion of rights.
Where a spouse married in community of
property had disposed of the entire estate
by will to the prejudice of his wife, who
was ignorant of her rights, and who was
not proved to have elected to abide by the
will, the Court held her entitled to half of
the joint estate, and in consequence
ordered the abatement of a specific legacy
left by the will.
Per De Villiers, C. J. — No doctrine is better
settled in our law than that a person cannot
297
te held to have renounced his legal rights by
acquiescence unless it is clear that he had
full hnoirledge of his rights and intended to
part with them.
Mr. Schreiner and Mr. Watermeyer appeared
for the plaintiff, and Mr Thomas Upington, Q.C.,
and Mr. Shiel for the defendants.
This was an action instituted by Mrs. Annie
Violet Sophia Watson against her father-in-law
and brothers-in-law, joint executors with herself
under the will of her late husband, Mr. James
M. C. Burchell, of the farm Duine, district of
Port Elizabeth, to have it declared that she was
entitled to one-half of the joint estate of her late
husband and herself, by virtue of her marriage to
him in community of property.
The testator who died on the 14th March, 1889,
by his will bequeathed all his landed property,
stock, and other movables to his children, with the
proviso that his parents should have the usufruct
of the same free of all rent and taxes. To his
brothers and sisters he bequeathed a specific legacy
of £18,480 invested in English consols after the
death of his parents, who were to enjoy the
interest on the same during their lives. He
appointed his wife and children residuary legatees,
besides giving them a legacy of £800 a year. He
appointed his father, two of his brothers, and his
wife sole executors under his will, and guardians
of his minor children and heirs. The wife ac-
cepted the benefits under the will, and continued to
act as executrix until April of the present year,
when she appears to have been advised that she
had not received her proper share nnder the will.
She then claimed from the executors one-half of
the entire estate of her late husband, and on their
declining to accede to her request she took the
present proceedings, in which she claimed, inter
alia, in her declaration :
(a) That she was entitled in her personal
capacity and by virtue of her marriage with com-
munity of goods to her late husband to one-half of
the entire joint estate.
(b) That she and her children were entitled to
receive annually out of her husband's estate the
sum of £800, in terms of his will, for the education
of her children and the support of herself and her
children, such sum to be paid until the youngest
of the said children should attain majority.
(e) That she and her children were entitled to
the residue of the testator's estate in equal shares,
she being bound to secure the capital of her share
to her children in equal shares by passing a
" kinderbewys " in their favour.
(d) That she was entitled to recover from her
father-in-law the amount received by him by way
of income on that half of the £18,480 to which she
was entitled by virtue of her marriage with com-
munity of goods to the testator
The defendants specially pleaded that:
(a) On the death of her late husband, and before
her remarriage, the plaintiff elected and agreed (as
she lawfully might do) to abide in all respects by
the provisions of the said will, and that she
assisted in liquidating the estate in manner pro-
vided by the will.
(6) That she further accepted the benefits con*
ferred upon her by the said will in full satisfac-
tion of all claim which she might have by virtue
of marriage or otherwise against the joint estate of
herself and her said late husband, and that she
waived and abandoned, with knowledge of her
position (as she lawfully might do), every right
now claimed in her declaration
Upon these facts and pleadings issue was joined.
Annie Violet Sophia Watson (born Danielle)
deposed that she was married by ante-nuptial con-
tract to Thomas Watson on the 1st July, 1891.
She was previously married to Burchell, by whom
she had three children. There was no ante-
nuptial contract. In March, 1889, her first
husband met with a gun accident, and when she
arrived in the bed-room he was just expiring.
She was not present when he made his will. Mr.
O' Brien came out and took an inventory of the
estate. She did not know what she had to receive
from her husband's estate, and she never waived
her claim to her share in her husband's estate.
Mr. Burchell's father made himself unpleasant by
threatening to turn her parents off the farm, and
she shen went to Innes <fc Elliott and made
enquiries as to whether she had any share in the
joint estate. She never signed any dooument re-
signing her share of the estate.
Cross-examined : She brought no money into
the estate. When O'Brien arrived, on the day of
the accident, she was on the stoep, but she did not
ktow that he oame to make her husband's will.
On the day the inventory was taken, O'Brien read
the will, but she was so agitated that she did not
gather what he said. O'Brien never drew her
attention specifically to the conditions of the will.
All the Burchell family were present on that
occasion. She was acquainted with Mr. and Mrs.
E. Norton, of Port Elizabeth, and remembered
Mrs. Norton showing her a Port Elizabeth news-
paper containing a copy of her late husband's will
She never said she was entitled to more money
under the will, nor did she remember meeting
Norton opposite the Port Elizabeth Customs-house
and speaking about the will. She never had any
conversation with Mrs. Burchell on the subject of
her late husband's will, until she had visited Innes
& Elliott. bhe was on affectionate terms
with the Burchells, but there were
occasional disagreements. She held no conversation
with Miss Minnie McClellan regarding the will of
her husband. When her brother was married the
Burchells came to the wedding, but the will was
298
not mentioned. Her mother never spoke to her at
W aimer as to the wife's right under a will. She
knew a Mr. Kernel ey, of Port Elizabeth, but
never asked that the accounts might be shown to
him. She addressed letters to Mr. Clayton, in
London.
For the defence was called Maria Petronella
Burchell, mother-in-law of the last witness who
deposed that at the time of his death her late son
and his wife were on the most friendly terms
with the family. On the day of her son's death
O'Brien came to make the will, and about twelve
days after he came to read the will. It was read
out distinctly, and the widow expressed no dis-
satisfaction. In April the widow raised a com-
plaint, and witness reproached her for going
against the dying words of her late husband. The
reply was that she knew by law that she was
entitled to the half.
Edward Norton deposed that he knew Mrs.
Watson. Shortly after the accident she called at
his house at Port Elizabeth, and a conversation
took place on the subject. She said that the will
was a very unfair one, as by right no man could
give away more than half of his property. She
told him that if the Burchell family was not
careful she would make it hard for them.
Ingatius Burchell deposed that at a conversa-
tion which took place at his house Mrs. Daniells
said it was a good thing that a will had been
made, as otherwise everything would have had to
be sold. She further said that a man could not
make a will without his wife's consent. Mr.
Daniells came in during the conversation, and said
his wife was correct in her conclusions. The
plaintiff always had an opportunity of perusing
the accounts, and when she expressed dis-
satisfaction he took her to Mr. J. G. Kemsley.
By the Court : He understood that Mrs. Watson
claimed one-half of the estate.
Minnie MoClellan deposed that she lived at
Kraggakamma, and knew Mrs. Watson. She
remembered meeting her shortly after her hus-
band's death. There was a talk about the will,
when the plaintiff said a very fair will was made,
and that she and the children were well provided
for. During the present year she met her again,
on the occasion of her brother's marriage at Port
Elizabeth, when the matter was again discussed.
Cress- examined : She volunteered to give her
evidence, as she thought it was her duty to do so.
There had been no quarrel between her and Mrs
Watson.
Frederick Burchell deposed to hearing Mrs.
Daniells say that the will was not complete unless
it bore the wife's signature, and that what
belonged to the husband belonged to the wife.
James Daniells, plaintiff's brother, observed that it
was shameful that such a discussion should arise
■o soon after his (witness's) brother's death.
Thomas O'Brien deposed that he drew up the
will of the late Burchell, whom he had known
for two or three years. He did not give the
matter a thought as to whether the man and wife
were married in community or not. The man was
bleeding to death and he drew up the will, which
he read aloud in the presence of the plaintiff. He
heard of no dispute until the letter was received
from Innes & Elliott. When he went out to take
the inventory he read the will loudly to all present,
including the plaintiff, who subsequently expressed
her satisfaction with the terms of the will.
Mr. Schreiner : The plaintiff is entitled to half
of the joint estate. She has not elected to abide
by the will. Counsel referred to Morstert's ctue.
Sir T. Upington contended that the plaintiff had
accepted the benefits given to her under the will ;
further, that she had personally administered the
estate under the terms ef the will ; and now
between March, 1889, and April, 1891, she took up
a fresh position, and claimed one-half of the estate.
The legacy to the testator's brothers and sisters
was specific and if the Court should hold that the
plaintiff was entitled to half of the joint estate the
residue should be applied in making up the
specific legacy (Roper on Legacies).
SUPREME COURT,
WEDNESDAY, NOVEMBER 25.
[Before Sir J. H. DB VILLIEB8, K.C.M.6.
(Chief Justice), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
WATSON V. BUBCHELL'S EXECUTORS.
Mr. Schreiner and Mr. Watermeyer appeared
for the plaintiff, and Sir T. Upington, Q.C., and
Mr. Shicl for the defendants.
The arguments in this case being concluded,
the Court delivered judgment as follows :
The Chief Justice said : This case differs from
the numerous class of cases in which one of two
spouses after the death of the other claims his or
her share of the community in opposition to the
provisions of a mutual will made by them. Tha
testator in the present case ignored his wife
altogether, and alone purported to dispose of their
joint property, as if no oommunity existed between
them. She also appears to have been ignorant of
her rights, and raised no objection either to
the will or to the account* framed in pursuance
of the will until two years had elapsed after
her husband's death. Under none of these ac-
counts, however, was any benefit awarded to her
299
beyond what she would have been entitled to by
virtue of the community. The defence to her
claim for her share of the common estate is in
substance that she has renounced her right, but no
doctrine is better settled in our law than that a
person cannot be held to hare renounced his legal
rights by acquiescence unless it is clear that he
had full knowledge of his rights and intended to
part with them. I am satisfied that until
April of this year, when the plaintiff was
informed by her attorneys of her true
legal position, she was not aware of the exact
nature of her rights, and that in acquiescing
in the accounts submitted to her for
signature she had no idea of surrendering rights
to which she was legally entitled. The plaintiff's
rights extend to every portion of the common
estate. The testator had no right therefore to
dispose of more than one-half share of his farms
or more than tne-half of the consolidated stock
standing in his name. But on behalf of the
defendants it has been contended that the
legatees of the stock, if not of the farms,
are entitled to the full benefit of their legacies,
and that if half of the stock is not given
to them the residue of the estate must make up
the deficiency. No direct authority on this point,
nas been cited on either side, but it will be found
that the question is fully discussed by Voet in
Book 30, lit. 28, and the writers referred to by
him. He points out the difference between the
legacy of a thing which does not belong to the
testator at all and the legacy of a thing of which
he is tenant in common with another. In the
latter case he holds that the legatee, in case ef
doubt, is entitled only to the share which belonged
to the testator, and he adds, apparently with
approval, that according to some, the same rule of
construction applies where a spouse bequeaths a
thing which forms part of the common estate of
himself and the other spouse. 1 would here also
refer to " Van der Her we v. Executors of Van der
Merwe " (Buch. 77, p. 89 ). The result, therefore, is
that the plaintiff must be declared to be entitled to
one half share ef the entire joint estate of the testa-
tor and herself. Having elected, however, to claim
her half share, she cannot obtain any benefit under
the will out of the testator's half share. As to
that half share, the specific legacies must be
reduced by one-half. In regard to the legacy of
£300 per annum to the plaintiff and the testator's
children for their education and support, the
plaintiff cannot of course share in it, and the
question remains whether her share lapses or
accrues for the benefit of her co-legatees. In my
opinion the right of survivorship exists not only
because the legatees are joined together as objects
of the testator's bounty, but because it is a fair
inference from the language employed by the
testator that if one ef the legatees should be
incapable of taking his share his co-legatees should
have the benefit of it. The same remark applies
to the legacy of the residue which will go to the
children of the testator. The Court will therefore
declare that in her individual capacity the
plaintiff is entitled to one-half share of the common
estate of herself and the testator, and that her
minor children are entitled to the annual sum of
£300 (if there is sufficient in the estate after
payment of half the specific legacies), as also to
the residue of the estate. The accounts to be
amended accordingly, but no past payments of
interest to be opened up. Costs out of joint
estate.
Mr. Justice Smith concurred, and said that the
only observation he wished to make was that
during the argument it did not seem quite dear
whether, in addition to the half of the property,
the wife was not entitled to some benefit from the
specific legacies. However, Mr. Schreiner had not
made a point of it, and Therefore it was not neces-
sary to make further comment.
Mr Justice Buchanan also concurred.
[Plaintiff's Attorneys, Messrs. F airbridge &
Arderne ; Defendants' Attorneys, 6. Montgomery-
Walker.]
WILSON V. SHA.W.
Pledge in the nature of sale.
Where goods, the property of a wife married
out of community, had been pledged by
her husband without her authority, and
subsequently sold by the pledgee without
having obtained a judgment, the Court
ordered the pledgee to deliver the goods ; or
failing delivery ; to pay their value less the
sum advanced by him on the same.
Mr. Juta, and Mr. MoLaohlan, for plaintiff;
Sir T. Upington, Q.C., and Mr. Bhiel, for defen-
dant.
This was an action instituted by Mrs. Wilson,
duly assisted by her husband, to whom she was
married by ante-nuptial contract, to recover from
the defendant, a law-agent residing in Cape Town,
the delivering up of certain jewellery and other
articles, upon which a loan had been obtained by
plaintiff's husband to the amount of £10 without
her consent. The artioles were valued at £90 by
plaintiff. The defence was that the defendant
had bought the artioles from plaintiff and her
husband for the sum of £10, and that they were
not now in his possession. The issue was whether
there had been an out-and-out sale to defendant
without the authority of plaintiff, or whether the
foods were handed to the defendant in the first
300
instance to be taken care of, and after that £10
obtained upon them, they remaining in defendant's
hands as security, Tbe plaintiff's contention was
that she should either have the goods back, or
their full value.
Mary Wilson deposed that she was married to
Thomas Hamilton Wilson in Scotland by ante-
nuptial contract. Last year defendant was acting
as her husband's agent. In March, 1890, they were
living in Roe land -street, and her husband was in
pecuniary difficulties. Defendant came to their
house one evening, and said if she had anything
she would like to keep he would take care of it
until things became more settled. She replied that
she did not see the neoeisity of suoh a course, as
what she had was her own personal property. De-
fendant's reply was that it was best to be on the
safe side. She then went upstairs and handed
over to him her jewellery, the bulk of which she
had before marriage. At the time they had no
money to pay for their board, and her husband
went todefendant to try and raise £10. He went
and returned with a paper, whioh set forth that
the goods had been sold for £10 to defendant, but
she refused to sign it. No money could buy some
of the things, whioh were family relics. Her hus-
band went away, and came back with £10, but she
never at any time authorised him to sell her
jewellery. She always thought defendant kept
the things until such time as the troubles ^blew
over. Some time afterwards they came into pos-
session of some money, and tendered the defendant
the £10, when defendant said he had no goods
belonging to Mrs. Wilson in his hands. She
denied that she had ever given anybody authority
to sell her jewellery.
Gross-examined : Defendant was an intimate
friend of theirs. At the time the jewellery was
handed ovor, there was an attachment in the house
against her husband's property. She did not re-
member seeing the bill of sale. She believed her
husband incapable of forging her name or dispos-
ing of her property without her consent. Defen-
dant never asked her whether she would buy the
articles back at tbe same price. She knew that
her husband got £10 from defendant ; nothing was
said about interest in her presence.
Re-examined : Her husband was expecting an in-
heritance from Scotland, and defendant was acting
as his agent.
Thomas Hamilton Wilson deposed that the
original value of the jewellery was about £90, but
was now worth a third less. Defendant had been
acting for him in various capacities. As he wanted
money, he went to defendant, and asked him to
advance £10. After some conversation with him
and his clerk, Baton, a document was handed to
him for his wife and himself to sign. His wife
refused to sign it, but he was persuaded to do so,
defendant saying that it was enly a matter
of form, as he did not hold a
broker's licence. Neither his wife) nor
himself was aware that an out-and-out sale had
been effected. When he received money from
Home he went te defendant and offered him £10
for the jewellery, whereupon be said he havd dis-
posed of it for £9 17s. 6d. Witness remarked.that
it was a fine thing to sell £90 worth of jewellery
for such a paltry sum.
Cross-examined : He asked defendant te be
lenient' in the matter of interest on the £10.
Between the 22nd March and the 11th April he did
not have the document in his possession. He was
not surprised at anything he heard now-a-days.
Sir T. TJpington : I suppose you do not attach
much weight to any of us.
Witness : I attach as much weight te you as you
do to me.
By the Court : When be got the money from
defendant he presented bim with a nugget pin and
four law-books.
For the defence was called William Bunting
Shaw, who deposed that in March, 1890, he waa on
intimate terms with the Wilsons. On ene
occasion he went to their bouse, and found that
the goods had been attached for rent. He offered
to take care of plaintiff's jewellery, and it was
handed to him. A few days afterwards Wilson
asked him to lend him £10 on the security of the
jewellery. He declined, but offered to buy tbe
jewellery out and out for £10. This Wilson agreed
to, and the document produced was drawn up and
signed. Witness then drew a cheque for tbe
money. Shortly afterwards he saw plaintiff, and
she thanked him for what be had done. He told
Wilson that he would keep tl.e things for a time,
and if he wanted them back he could get them
for £10. In February he sold the thinga, with
others of his own, to Jacobsohn for £17, with the
exception of a pair of nugget earrings. At the time
he was hard pushed, and was anxious to get as
much money as possible.
Cross-examined: He received a power of attor-
ney from Wilson authorising him to get the money
coming from Scotland, but the power was after-
wards revoked.
By the Court : He purchased the jewellery for
himself, fully expecting that it would be bought
back. On the 28rd March he told Wilson that he
could redeem the jewellery within a reasonable
time.
Francis Alexander Eaton deposed that he was
clerk to defendant in March and April, 1890. He
drew up the document produced, and told Wilson
that it was a deed of sale. After some delay
Wilson signed the document, and received the
£10. Wilson said the money was only a loan, and
he would repay it to defendant in a few days.
Samuel Jacobsohn deposed that he purchased a
quantity of jewellery from Shaw, and paid him
the sum of £17, whioh he considered to be a very
301
fair price . The electro-plated tea set, valued by
plaintiff at £10, was worth about £2. He sold it
some time ago, but did not remember what he got
for it. He had several of the articles still in his
possession, and was likely to have them for a very
long time. Some ef the jewellery contained spurious
diamonds. The rings produced were worth from
2s. to 4s. each. He valued the gold albert chain
at £7, and a crocodile skin cigar-case at 10s. The
u geld-headed scent-bottle, with monogram,"
valued at £2, was worth 3s. There was no gold
about it. He bought several rings, valued at £9;
they were worth 8s. to 4s. each. The brooches
produced were of small value ; probably about 8s.
or 10s. each. The paroel of jewellery would not
fetch £90 in Cape Town ; it might in California.
The nugget earring, set down at £5, he valued at
about 10s.
Cross-examined : He had sold the most valuable
portion of the property. The presence of the
monogram on the scent bottle detracted from its
value when offered for sale. He did not know
what the price would be in Adderley-street ; he
knew what the value of the goods were. The tea-
service was composed of electro-plated pewter.
Mark Ringham deposed that he went to
defendant's house to examine some second-hand
jewellery which was on sale. Defendant asked
him what he would give for it and he offered £6
for the lot. This was refused, as defendant
wanted £10.
Joseph Aloysius Carroll, messenger of the
Court, depesed to serving an interdict on Wilson
on the 19th March last year. If he had known
there was any jewellery in the house he would have
attached it, as there were several judgments
against Wilson. Some of the articles attached
were subsequently claimed by othtr persons.
After argument, the Chief Justice said the
Court was perfectly satisfied that there was a
certain written document by which the artioles in
question were to be meiely pledged, and not sold.
The evidence of 8haw on this point was not quite
satisfactory. In the first part of his evidence he
teemed to deny altogether that it was not in the
nature of a pledge, but afterwards when pressed he
admitted that the day after the transaction went
through it was understood between the parties that
in a month's time, if the plaintiff paid the money,
the goods would be returned to her. Further
pressed on this point, he said that as far back as the
23rd March it was also understood between them.
It being once admitted that this transaction was
really in the nature of a pledge, the Court could
not look with approval on the matter. It was
dear that the pledgee had no authority to sell with-
out first obtaining a jidgment of the Court.
Another point in favour of the plaintiff was this —
in his opinion she never authorised her husband to
fell these articles ; all she authorised him to do
was to pledge them. This was what he really did,
being under the impression that the deed of sale
was a mere matter of form. It was clearly
understood between the parties that the
things were to be pledged and not
sold. The defendant went to Ringham
with the articles, where he was offered the sum of
£6. He next proceeded to see Jaoobsohn with the
goods, supplemented by some articles of his own,
and it appeared that Jaoobsohn paid him some-
thing like £10 for the parcel placed in his hands
by the plaintiff. Jacobeohn was a dealer in these
goods, and bought goods very cheaply. He
thought the price paid by him for these articles
was not a fair criterion. The plaintiff's value of
the goods was, however, extravagant. Bearing in
mind that Jaoobsohn paid £10, he thooght the
Court might fairly add another £10 to the value,
and that would be a fair criterion of their true
value when they were pledged. In his opinion,
therefore, the plaintiff was entitled to recover
these articles on payment of £10, with interest
from the 11th April, 1896 ; but inasmuch as the
defendant was net in a position to re-deliver the
articles, the plaintiff was entitled to judgment for
£20, less the £10 and interest above mentioned.
He confessed that the real difficulty he had to deal
with in this case was the question of costs. It
struck him that this case might fairly have been
decided in the Magistrate's Court, instead of
occupying the time of this Court nearly the whole
of the day. There was, however, an important
principle involved in the oase, and seeing that
the defendant, as a law-agent, should have
known that he should not have taken the law into
his own hands ; judgment would be for plaintiff
for £20 and costs, less £10 and interest from the
11th April, 1890.
[Plaintiff's Attorney, H. P. du Preez; Defen-
dant's Attorney, J. Hamilton- Walker.]
KNOX V. KNOX.
Mr. Castens for plaintiff; defendant (Cecilia
Smythe Knox, born Hyslop) in default. This
was an action instituted for the restitution of
conjugal rights. The parties were married in
1866 at Edinburgh, and came to this colony in
1879. During the month of October, 1888, the
defendant suddenly went away to England, and
the plaintiff sent her money to pay her return
passage. She returned to the Colony, and
in July, 1890, she again went away suddenly.
The plaintiff then consulted an attorney, and
commenced proceedings. Personal service of the
summons had been made upon the defendant in
England. There were no children by the marriage.
The Court ordered the defendant to return to her
husband before the 16th February next, failing
whioh, a decree of djvoroe would be granted)*
302
PETITION OF IDA M088.
Mr. Shiel moved for leave to sue by edictal cita-
tion in an action against petitioner's husband,
Henry Charles Moss, for divorce by reason of his
adultery and cruelty, and for the custody of the
two minor children.
The Court granted leave to sue by edictal cita-
tion, rule returnable on the first day of next term,
personal service if possible, failing which, one
insertion in one of the Cape papers.
TBUTKB V. TRUTBB.
Mr. Watermeyor moved for an order making
absolute the rule nisi for the dissolution of the
marriage between the parties by reason of the res-
pondent's failure to obey the order for restitution
of conjugal rights ; to give the cuttedy of the
children to the applicant, their mother ; for divi-
sion of the joint estate ; and for an order restrain-
ing the alienation of certain reversionary interest
to devolve on the respondent at the death of his
mother. Mr. Watermeyer raid there was another
motion, which had stood over, praying for the
appointment of a reoeiver in the joint estate.
The Court granted the order, and appointed
Mr. B. Wethmar, secretary of the Malmesbury
Board of Executors, receiver, to divide the com-
mon estate of the plaintiff and defendant ; to pay
half of the proceeds to the plaintiff, the costs of
this motion to come out of the other half.
LAWLET V. GAPE TOWN COUNCIL. BBUCE V.
CAPE TOWN COUNCIL.
Cape Town Council— Act 44 of 1882—
Municipal Regulations — Regulation 205 —
" Obstructions and projections" — Ultra
vires — Property in street pavements —
Interdict — Rule nisi discharged.
Mr. Juta (for Lawley) applied for an order mak-
inga bsolute the rule nisi for an interdict re-
straining the respondents from removing the
signboard in front of the applicant's premises in
Longmarket-street, Cape Town. — Sir T. Upington
appeared for the Town Council.
Mr. Bearle moved for an interdict restraining
respondents from removing or interfering with a
sign erected by Bruce in front of the premises
occupied by him in Adderley-street, Cape Town,
on the ground that Buoh sign was erected with
respondents' consent, that it was neither a source
of danger nor a nuisance, and that the regul-
ations requiring its removal were unreasonable
and unauthorised by Aot 44 of 1882.
Sir T. Upington also appeared in this case for
the Town Council, and moved that the rule nisi
granted in the care of Lawley be discharged, on
the ground that the Council were acting quite
within the eeope of their authority in proceeding
as they did, under the 205th regulation, promul-
gated on the 29th May, 1889. It was not at ail
ultra vires to make such a regulatieo. In the case
of Bruce the principle was exactly the same.
Mr. Juta said without any reason assigned his
clients were ordered to take down their signboards.
Consent had been given, and the signboard had
been in existence for forty years. There was
nothirg which authorised the Town Council to
remove private property. If the Town Council
had the right to remove a man's signboard, on
the Fame prinoiple they could remove a main
stoep if it was an obstruction to the thorough-
fare. He contended that there was no sach power
under the Act.
Mr. Searle said that the only section under
which the Town Council could claim to aot was
section 69, which dealt with questions affecting
he health or peace and quietness of the inhabit-
tnts. No complaint en this score had been made
regarding the signboard of Messrs. Bruce & Co.
He did not thinklit was right that, after consent
had been given, at the whim of the Town Council
a tradesman should be oompelled to remove a
costly signboard.
SUPREME COURT.
THURSDAY, NOVEMBER 26.
[Before the Chief Justice (Sir J. H. Dtt
VlLLlERS, K.C.M.G.), Mr. Justice SMITH,
and Mr. Justice BUCHANAN. |
LAWLET V. CAPK TOWN COUNCIL.— BBUCE V.
THE SAME.
The hearing of these applications was resumed ;
Mr. Juta appearing for Lawley, Mr. Searle for
Bruce, and Sir T. Upington, Q.C., for the Town
Council.
Sir T. Upington quoted a proclamation of June
24, 1811, defining the district of Cape Town and
the duties of the Town Council, and said that
whatever the Burgher Senate possessed was now
the property of th« Town Council as clearly as if
it had been made over by formal transfer.
Mr. Justice Smith asked why the streets were
not specifically mentioned as the property of the
Town Council.
Sir T. Upington said that everything was in-
cluded as belonging to the Council,
303
The Chief Justice said thai if the streets were
not under the control of the Town Council, and
possessed by that body, it was difficult to under-
stand to whom they did belong.
The Chief Justice gave judgment. In doing so,
his lordship said that in beth theee applications
the Court was asked to interdict the
Town Council from enforcing the provi-
sions of the 205th regulation, the latter
portion of which referred to these cases.
It was not denied, on behalf of the Town Council,
that the obstructions or projections now in ques-
tion were lawfully made, and there was no objec-
tion on the part of the Town Council to make
reasonable compensation to both of the applicants
for any damage they might suffer by reason of
the removal or alteration of these obstructions.
The question of compensation, therefore, did not
enter into the present case. He did not think it
was necessary for the Town Council to have ten-
dered any fixed amount of compensation at the
time when notice of removal was given. The
Town Council had been quite prepared to pay any
compensation which might be reasonably allowed,
and therefore that part of the question had no
concern with the present case. The real question
was whether the regulation was ultra vires on the
part of the Town Council. Now it had to be
borne in mind that regulations had existed as far
back as 1840 by which the Town Counoil — the
Municipalities which were the predecessors of the
Town Council and also the present Council — had
control over the streets and all projections made
over the said streets, and it was difficult to
conceive any municipality existing without some
control over the projections or the streets over
which it must have lawful control. The question
had incidentally arisen in the present case whether
the property in the pavements of the streets was
vested in the Town Council. He was inclined
to think it was, but whether that
were so or. not the Council had
Municipal control over the pavements of
the streets, and in his opinion that control
carried with it control over all projections
overhanging the streets. It was quite within the
power of the Council to make regulations regard-
ing those projections. For over fifty years regula-
tions had existed giving control to the Munici-
pality, and the power to refuse or consent to these
projections being made. In the case of Lawley, it
was stated on behalf of the applicant, first, that he
had got the consent of the Counoil, and secondly,
that he had acquired his rights by prescription.
The two statements, it was clear, were inconsistent,
If the signboard were placed there with consent,
then clearly there was no right by prescription. In
the case of Brace & Co., it was stated, and not
denied, that there was an actual consent given by
the Town Counoil, but in his opinion that consent
2b
was quite revocable, and not binding upon any
Council succeeding the one that granted it. The
Council had the right to say whether the licence
once given was to be continued or not, and he
might remark on that point that the Council's
regulation seemed a very fair one, because it
said that where signboards had been erected with
permission they should not be removed without
reasonable compensation. In his opinion it was
perfectly within the power of the Counoil to make
and carry out the regulation, and the applicants
had no right by interdict, or at all events by sum-
mary motion, to prevent the Council from exer-
cising its powers. Under those circumstances he
thought that in the case of Lawley the rule must
be discharged with costs, and in the case of Bruce
the application must be refused with costs.
Their lordships concurred.
The Chief Justice added that in the case of
Bruce the letter of the 2nd November, written by
the Town Counoil, contained a very fair offer to
the applicant.
[Attorneys for the Town Council, Messrs. Fair-
bridge & Arderne ; Attorneys for Lawley, W. E.
Moore ; Attorneys for Bruce, Messrs. Bcanlen and
Syfret.]
PROVISIONAL ROLL.
GEBMAN WEST AFRICAN COMPANY V. HANSEN.
Mr. Juta applied for final adjudication of the
defendant's estate, the provisional order having
been granted on November 20.
Defendant appeared in person, and said he had
a counter claim against the plaintiffs.
The Chief Justioe examined the documents
handed up by the defendant, and adjourned the
case for the production of the records of the Resi-
dent Magistrate's Court.
At a subsequent stage of the sitting,
Mr. Juta produced the records of the Resident
Magistrate's Court, which were to the effect that
defendant had admitted the debt,
The Court granted the order of adjudication as
prayed.
GENERAL ESTATE AND ORPHAN CHAMBER V.
OCTOBER.
Mr. Thome moved for provisional sentence upon
a mortgage bond for £160, with interest at 7 per
cent, from June 30, 1890.
Provisional sentence was granted, and the pro-
perty declared executable.
CORNWALL AND CO. V. A. G. GILL.
Mr. Watermeyer moved for provisional judg-
ment for £7 12s. 9d.
The order was granted as prayed,
304
KING BBOS. V. JOHANNES WAHL.
Mr. Molteno moved for judgment for £88
10b. 6d., on an account current between the parties.
Provisional judgment was granted.
GENERAL MOTIONS.
OAPOKN Y. MARRIOTT.
Partnership — Disagreement of partners —
Notice of dissolution — Deed of partnership
— Right of election — Receiver.
Where partners had disagreed, and one
partner had given notice of dissolution , the
Court, on the application of the latter,
appointed a receiver until the other
partner should elect whether he would or
would not purchase the share of the
applicant in the business, and failing such
election within three months from the date
when the value of the assets had been
ascertained in terms of the deed, autho-
rized the receiver to finally liquidate the
affairs of the partnership.
Mr. Schreiner moved for an order appointing a
receiver to take charge of and oonduot the partner-
ship business of applicant and respondent, pend-
ing the ascertainment of petitioner's interest
therein on the dissolution of the firm. Counsel
read affidavits to the effect that the partnership
was entered into in 1888, and made terminable
after six months* notice. Applicant was dissatis-
fied with the manner in whioh respondent had
behaved, and particularly with the way in which
he had kept the books of the firm. These were in
arrear, and would require some weeks to write up.
There had been very serious disagreements
between the parties, terminating recently in an
assault committed on applicant by respondent.
The stock was valued at over £4,000, and the out-
standings between £600 and £600. Counsel stated
that by a provision of the partnership deed it
was laid down that if either of the partners
retired he oould be treated as a dead man, even
though he were alive, and the remaining partner
had three months' time in which to make up his
mind as to the course he would adopt. Notice had
been served on Marriott by applicant, and the
partnership would cease on November 27, when
Caporn's position would be greatly prejudiced if
respondent were allowed to remain in sole posses-
sion of the business, and to take three months to
decide what he would do. Under these circum-
stances applicant prayed for the appointment of
Mr. E. R. Syfret as receiver, costs to be paid
out of the estate.
Mr. Searle appeared for the respondent, and
opposed the petition. He read an affidavit of
respondent to the effect that he was prepared to
act in accordance with the terms of the partner-
ship deed. He denied that the books were in an
involved state, and said that the true reason why
applicant desired a dissolution of the partnership
was that respondent had refused to appoint a
brother of Caporn's the English agent of the firm.
Mr. Justice Smith : What do you propose ?
Mr. Searle : We simply stand by the partnership
deed, my lord.
Mr. Sohreiner said that the partnership deed
had been correctly quoted, but the parties were
utterly in disagreement, one of them having been
fined for assault upon the other, and unless the
Court granted some relief the business might be
closed to-morrow, and Caporn's interests tied up
for three months whilst respondent was making
up his mind The application was most
reasonable, and made in the interests of the
business.
The Chief Justice : Is there absolutely no
chance of a distribution according to the deed
without the intervention of the Court?
Mr. Sohreiner : Absolutely none, my lord.
After argument,
The Chief Justice gave judgment: This, he
said, was not a case in which the Court was asked
to appoint a receiver to conduct a going partner-
ship business. The case was one in whioh one of
the partners had given notice of dissolution, which
was to take effect to-morrow, and the Court was
now asked to appoint a receiver to act impartially
between the two parties, who had seriously dis-
agreed between themselves. It was obvious from
the affidavits put in that there was no likelihood
of these two partners amicably settling matters
between themselves, and it was therefore for the
interest of both parties that a receiver should be
appointed to take charge ef and conduct the
partnership business until the respondent
should have had an opportunity of electing,
in terms of the partnership deed, whether
he would or would not purchase applicant's
share ef the assets. The Court did not propose
in any way to vary the terms of the articles
of agreement. The respondent was to be entitled
to the full benefit of those articles ; he was to be
entitled to make his election within the time
allowed by the articles, but until he did so make
his election the Court was ef opinion that there
ought to be an impartial person to act for both
parties. That power was almost always exercised
when it was for the good of both sides that it
should be. As toon as respondent had elected to
purchase the business the powers of the receiver
would fall to the ground. The appointment would
only be made till then, but in case the respondent
should not exercise his right of purchase within
305
the three months, then of course the powers of the
receiver would become absolute, and he would be
entitled to liquidate the business. The order of
the Court would be that Mr. S. R. Syfret should
be appointed receiver, to take charge of and con-
ductthe partnership business from the date of
the dissolution until the respondent should elect,
in terms of the deed, whether he would or would
not purchase the share of the applicant, and fail*
ing such election, within three months from the
date when the value of the assets had been ascer-
tained in terms of the deed, Mr. By fret would be
authorised finally to liquidate the affairs of the
partnership. The costs would be costs out of the
partnership funds.
[Appellant's Attorneys, Messrs. Tredgold,
Mclntyre and fiisset; Respondent's Attorneys
Messrs. van Zyl A Buissinne.]
DUNMAN V. TRAUTMANN.
Contract in restraint of trade — Construction
— Breach — Goodwill of business — Cession
— Alleged misrepresentation — Damages —
Interdict.
Mr, Schreiner and Mr. Watermeyer for plain
tiff ; Mr. Searle and Mr. Molteno for defendant.
This was an action brought by Mr. C. B.
Dunman, of Hout's Bay, against Mr. Jacob
Trautmann, of the same place. The circum-
stances of the case were that Trautmann had
carried on business at Hout's Bay as a hotel-
keeper and general dealer, and on September 12,
1889, an agreement was entered into whereby he
sold the hotel business, the shop, and all his
interests, together with certain land, to one
Bennett. It appeared that Bennett bought some
furniture, among other things, but the furniture
was not all delivered. A dispute about it arose
between Bennett and Trautmann, and Bennett
being very desirous to get a special clause regard-
ing Trautmann'a promising not to commence
business in the district again, arranged the dispute
en the basis of an agreement signed on December
4, 1889, by which Trautmann bound himself,
under a penalty of £100, not to commence
business in the vicinity, or allow his children to
do so during his lifetime. Dunman purchased the
whole of Bennett's rights, and informed Traut-
mann of that fact. At the beginning of the
present year, counsel stated, Trautmann committed
a breach of the agreement by opening a shop at
Hout's Bay. It was true that it was in the name
of his son, but it was supported by him, and he
served there. Plaintiff therefore claimed £100
damages for breach of contract, and an interdict
restraining Trautmann from continuing his present
course of action*
Defendant, in his plea, denied that the agree-
ment of December, 1889, was read or explained to
him, and contended that it was entered into owing
to misrepresentation on the part of Bennett and
his agent.
Plaintiff gave evidence, in the course of which
he stated that he paid Bennett £1,800 for his
rights, the agreement with Trautmann being
specially mentioned. Since the opening of the
present year his business had fallen off very
largely, owing to Trautmann'a setting up in busi-
ness. He had seen Trautmann serving customers
on several occasions.
By Mr. Searle : It was true that Mrs. Traut-
mann generally managed the business.
John Thos. Bennett, the vendor to Dunman,
stated that it was intended to bind Trautmann by
the first agreement not to enter into business in the
vicinity, but owing to an accident that clause was
omitted. Trautmann was perfectly aware that one
of the grounds of purohas e was that he should not
commence business again in the vicinity. Witness's
desire to that effect had been thoroughly and
fully explained to Trautmann, in Dutch and
English, in the presence of several witnesses, and
he distinctly stated that he was thoroughly satis-
fied with the terms. Witness was not now living
at Hout's Bay, and had no interest in this action.
By Mr. Searle : He was certain he had not
urged Dunman to bring that action. Dunman had
paid almost all the £1,800; only £125 was owing
at present. It was net correct that Trautmann
did not understand English, but for safety's sake
the agreement was also read over to him very
slowly in Dutch, and he then signed it.
J.J. D. Buyskes, agent, deposed that he drew
up the contract between Bennett and Trautmann,
the latter having asked him to dispose of his
property. In December, 1889, he met Trautmann
in the road, and remarked that he had heatd that
the dispute with Bennett was settled. Trautmann
replied yes, that he was going to Germany, and
had surrendered the shop to Bennett, with his
rights. On the very day the agreement was
signed he caught Trautmann removing some of the
furniture, and at once stopped him and told him
that in removing furniture sold to Bennett he was
committing an act of theft.
By Mr. Searle : When he met Trautmann in the
road the latter did not in so many words say that
he had agreed to desist from trading at Hout's
Bay, but he said that he had given in, and done as
Bennett wished.
C. L. Bindemann, agent, deposed that he and
Trautmann discussed the agreement of December
4, 1889, very fully, and Trautmann was in par-
ticular made to understand that he was not to
recommence trading at Hout's Bay. It was
Trautmann'a own proposal that, as he was going to
Germany, he would allow a stipulation against his
306
opening the shop again to be included in the
agreement. Witness handed a oopy of the agree-
ment to Trantmann some time afterwards. When
the document was drawn up witness read it in
English and then explained it in Dutch.
Jacob Brink deposed that he was present when
Trantmann signed the oontraot. It was read
over to him, in witness's presence, in English and
Dutch.
By the Chief Justice : The agreement was to
the effect that Trantmann should not commence
trading again.
J. C. Smith stated that on one occasion Trant-
mann told him that the business now going on at
Hout'g Bay was his son's, but that he was oonduot-
ing it for him.
For the defence,
Defendant gare evidence that he handed to
Bennett the whole of the furniture included in
Buyskes's list. On the occasion when the seeond
agreement waa discussed no document was drawn
up, but on January 6, 1890, he did sign an agree-
ment. When he signed his name to the second
agreement he thought it was a receipt for the
goods. Its contents and nature were never ex-
plained to him. He had never promised that he
would not open a shop in the vioinity, nor had he
ever sought to bind his children in the manner
suggested by plaintiff. It was not true that Binde-
mann ever handed him a copy of the agreement.
He had no share of the profits ef the business now
conducted by his son.
By Mr. Bchreiner : He never signed any docu-
ment in the presence of Brink and Bindemann.
Mrs. Johanna Trantmann stated that the takings
of the shop were not more than £8 10s. per week,
and that it was the property of her son.
SUPREME COURT.
FRIDAY, NOVEMBER 27.
( Before the Chief Justice (Sir J. H. DE VlLLlEBS
K.G.M.6.), Mr. Justice SMITH, and Mr.
Justice Buchanan. 1
DUNMAN V. TRAUTMANN.
The hearing of this action, was resumed. Plain-
tiff was represented by Mr. Schreiner and Mr.
Watermeyer, and defendant by Mr. Searle and
Mr. Molteno.
Mr. G. H. Brand, conveyancer, deposed that on
one occasion Trantmann, in his presenoe, refused
to part with the shop, which he sai4 belonged to
his wife.
The following authorities were referred to in
argument : Voet, 18, 4, 9, 10 ; Sand*, de act eetf.
cap 5 ; Story, 99 ; Pollock on contracts, 313 ; Allan
on the Law of 6 oodwill, p. 80 and cases there
cited ; Hitchbock v. Coker, 6 A and E. 438 ; Elves
v. CrofU, 10 C B. Heps., 241 ; Hasting* and
others v. Whitley, 2 Ex. Reps., 611; Atkyn* v
Kinnitr, 4 El Reps., 776; Afumford v. Getking,
7 C.B. (N. S.), 805 ; Benwell v. Inns, 24 Bearan %
807 ; Go wit v. The Provident Insurance Co n 4
Juta, 118.
The Chief Justice gave judgment. The only
real difficulty, he said, throughout the whole
of the case had been as to the construction of the
oontraot. On behalf of the plaintiff, it was con-
tended that there was an undertaking on behalf of
the defendant not to carry on a business of the
same nature as that which he had sold. On
behalf of the defendant it was contended that the
real oontraot was of a personal nature, and that
there was merely an undertaking not to carry on
such a business as the plaintiff was from time to
time to carry on. In his opinion, the first con-
struction was the correct one. At the time the
contract was entered into Mr. Bennett was not
carrying on a business, but defendant bound him-
self net to conduct a similar business to that he
was then selling to Bennett. If that were the
true meaning of the contract, it was quite clear
that it was not a contract of such a purely per-
sonal nature that the benefit of it could not be
assigned by Bennett to anyone else. In assigning
the good-will of Bennett's business, the benefit of
that contract would come into the assignment.
The effect of the cession was merely a transfer to
Dunman of benefits oonf erred on Bennett by the
contract with Trautmann. There was nothing in
the Colonial law to prevent such a cession being
effected. That being so, in the present case there
had been a clear cession of the contract to the
plaintiff, and he was entitled to the benefit of it,
unless the special pleas relied on by the
defendant were proved. The first plea was
that he did not understand the contract
It was dear from the evidenoe that he
must have understood it. When the first contract
was read in English he said he did not require a
translation into Dutch, as he fully understood it.
As to the second oon tract, they had the evidence
of respectable witnesses, who at the time of the
second contract heard it read to Trautmann in
English and explained in Dutch. He (the Chief
Justice) was perfectly satisfied that there had
been no misrepresentation. Then there was the
further plea that Trautmann had not broken his
contract. Well, in his opinion the whole transac-
tion was a mere blind, and the real man who
carried on the business was defendant. As he had
said, the real point was the construction of the
oontraot, and on that his judgment was againit
307
defendant. At the same time it was clear that
the interdict asked for was too wide, there being
no allegation that defendant intended recom-
mencing business as a hotel keeper. Judgment
would be for the plaintiff for £ 10, and an interdict
would be granted restraining the defendant during
his lifetime, and that of his children, from carry-
ing on, or causing to be carried on, the business of
a shopkeeper at Hout's Bay.
Their lordships concurred.
[Plaintiffs Attorney, Gus Trollip ; Defendant's
Attorneys, P. Brink.]
GENERAL MOTIONS.
NESBITT V. NESBITT.
Mr. Webber moved for an order making absolute
the rule nisi admitting applicant to sue her husband
in forma pauperis in an action for restitution of
conjugal rights, failing which, for dissolution of
marriage between the parties.
The order was granted.
IN THE KBTATK OF THH LATH ADAH BARNABD.
Mr. Joubert moved for an order making alsolute
the rule nut for the registration in the name of the
said estate of certain one-fourth share of the farm
Wflgebooxn, situated in the division of George,
st present registered in the name of William
* . Botha.
The order was granted.
PETITION OF MARK COHEN.
Mr. If askew moved for authority to mortgage
certain lots ef ground situated in Cape Town,
purchased in trust for petitioner's minor daughter,
of which only a portion of the purchase price is to
be paid in cash.
The application was ordered to stand over for
farther information.
BURN Y. BURN.
Mr. Tredgold moved for the direction of the
Court as to the service of the rule nisi for the
dissolution of the marriage between the parties
on account of the disappearance of the defendant,
who until recently resided in Cape Town.
The order was granted, publication in the Gov-
ernment Gazette and the Oudtthoorn Courant.
PETITION OF CHARLES WILLIAM LEE.
Mr. Juta moved for an order allowing the peti-
tioner's service as an articled clerk to a solicitor
in the City of London to have affect as service in
this colony, and for admission as an attorney of
this court, after passing such law examination as
may be prescribed.
The Chief Justice questioned if there was a
single case in which a year's service in the Colony
had been dispensed with.
Mr. Juta confessed that he did not remember
such a case at the moment, but asked that the
matter should be allowed to stand over, when he
would look up the cases.
The Chief Justice agreed to that oourse, and
allowed the application to stand over. He doubted,
he said, whether the year's service in the Colony
could be dispensed with.
PETITION OF W. T. HOOOENDOORN.
Mr. Searle moved for an order making absolute
the rule nisi for authority to the Registrar of
Deeds to amend the description of certain landed
property situated in Rose-street, Cape Town,
transferred to the petitioner in 1879, by adding
thereto a referenoe to a diagram annexed to a
transfer deed of the 16th September, 1801.
The order was granted.
RICHARD8 V. RICHARDS.
Mr. Tredgold moved to make absolute the rule
nisi admitting applicant to sue in forma pauperis in
an action against her husband for restitution of
conjugal rights, failing which for divorce.
The order was granted.
In re THE PAARL BANK (IN LIQUIDATION).
Sir T. Upington presented the special report of
the official liquidators in respect of the compro-
mise to be effected with the oo-liqnidator, Mr. J.
J. de Villiers, of his liability as a former share-
holder of fifteen shares in the said bank. The re-
port was to the effect that Mr. De Villiers was
liable to be placed on list B of contributories,
namely, that of past shareholders. Ten of the
shares were transferred to F. A. B. de Villiers,
since deceased, and five to P. B. de Ville. Bath of
these persons had been excussed, and it was esti-
mated that only £600 was obtainable from one ef
the parties. The total possible liability upon Mr
De Villiers was £3,760, and Mr. De Villiers
offered a cash payment of £3,000 to be relieved of
all future liabilities in respect of the shares. Mr.
De Villiers was one of the liquidators, and his
fellow-liquidators were of opinion that the offer
should be aocepted in the interests of the liquida-
tion. Counsel stated that no list B had yet been
published, but Mr. De Villiers had made what was,
he submitted, a very fair offer, because he did
not wish to have this liability hanging over his
head.
308
The Chief Juatice : I suppose he wishes to pro-
tect himself from future calls.
Sir T. Upington : I suppose that is the case
from his point of view, but the liquidators think
it is a case where a bird in the hand is worth two
in the bush.
The Chief Justice : Has his name appeared on
the list lying for inspection ?
Sir T. Upington : No, for the reason that he
is simply a person upon whom there is only a
contingent liability.
The Chief Justioe ordered the special report to
lie on the table for a fortnight for inspection, the
application at the end of that time to be renewed.
PETITION OP DANIEL J. W. BEUWER AND
OTHBRS.
Mr. Jones moved to make absolute the rule nisi
issued under the Titles Registration and Derelict
Lands Act, 1881, for transfer to petitioners of a
p ortion of the farm RaudbergBf ontein, situated in
the district of Robertson.
The order was granted.
PETITION OF THE OAPE OF GOOD HOPE
SAYINGS BANK.
Practice — 370th Rule of Court — Revived
judgment.
Mr. Schreiner moved for an order authorising
the High Sheriff to proceed with a sale in execu-
tion, or for other relief, in the estate of F. S. 6.
Maritz. Counsel referred to the 870th rule of
Ceurt, and to " Meyer v. PohJ," 1 Menz., 498.
The Court held that as more than six years had
elapsed since judgment (although the writ had
been issued) the judgment must be revived, and
ordered the sheriff to proceed in the ordinary course.
HEBP'S TRUSTEES V. BROWN.
Mr. Schreiner moved for an order confirming the
account and plan of distribution filed by the said
trustees, and requiring respondent to pay the costs
occasioned by his failure to proceed with his objec-
tions lodged in respect to the said account.
Mr. Juta appeared for the respondent.
The hearing of the application was postponed till
the second Thursday in February.
In re THE CAPE OF GOOD HOPE BANK (IN
LIQUIDATION).
Mr. Schreiner presented, for the sanction of the
Court, certain compromises proposed to be effected
by the liquidators with oontributories and debtors.
Counsel stated that no objection had been made
to the proposed compromises, which were in the
interests of the liquidation. Counsel also applied
for an extension of the time within which claim*
could be filed until June 80, 1892. There were a
number of persona, it was explained, who through
ignorance or inadvertence had not filed their
claims, and the directors were desirous of allowing
them to do so.
The Chief Justice : Among the compromises I
see one by Sir Thomas Scanlen. How does thai
stand with regard to the Union Bank olaim in
his estate ?
Mr. Schreiner : I believe it agrees with that, my
lord ; but I have not got the whole of the papers
before me.
The Chief Justice : What is the arrangement?
Does he assign the whole of his estate ?
Mr. Schreiner : I have heard se privately, but
I am not directly instructed to that effect.
The Chief Justice : But is the Union Bank a
party to the present arrangement ?
Mr. Schreiner : 1 have no information, my lord ;
but there have been no objections.
Mr. Justioe Buchanan : You see, you ask for
confirmation so far as one bank is concerned, but
the other bank may object.
Mr. Schreiner saw the force of the objection,
but said that the previous matter in which Sir T.
Scanlen was concerned was of a different character.
The Chief Justioe aaid it was a pity that the
Union Bank had not been approached seeing that
it was a creditor for £37,000. Subsequently,
The Court confirmed the compromises with the
exception of that relating to the estate of Sir T.
Scanlen, which was ordered to stand over until
such time as the liquidators of the Union Bank
could apply to the Court for sanction to the pro-
posed arrangement. The time for the filing of
claims was extended till June 30, 1892.
Following is a list of the compromises :
Adler, Henry, Johannesburg, £1,500, offers £100
cash, already paid.
Bonas, G. H., Kimberley, £2,772 Is. Id., offers
£266 cash, already paid, and the following shares,
600 Ida Gold-mining Company (Limited), 500
Britannia Gold-mining Company (Limited).
De Villiers, A. B., P.F.son, Paarl, £780, offer*
6s. 3d. in the £.
Freundlich, N. <fc J., Johannesburg, £562 offer
6s. in the £, £163 9s. already paid, provided the
promissory note of Harris <fc Glaeser be surren-
dered, these being considered by the liquidators to
be worthless.
Gradwell, M. W., Johannesburg, £866 7s. 6d.
and interest, offers twelve promissory notes signed
by D. C. Gradwell, of Graham's Town, fur £6
16s. 9d. each, first of which is paid, being 8s. in
the £ on his half-share of his liabilities to the
bank i
sod
Green wall A Co., Solomon, Kimberley, £11,146
Ob. 9<L, offer £200, paid, all scrip in possession of
bank, and sixteen promissory notes of £60, signed
by H. Greenwall as surety and co-principal debtor ;
the promissory notes payable on the 1st of every
month, commencing 1st November, on the under-
standing that, failing payment of any of the instal-
ments as they become due, the sums paid shall be
placed to credit of obligations, and the whole debt
revive.
Hermann, Hans, Port Elizabeth, £875, offers
£60 cash, already paid, and all the securities in the
bank's possespion.
Neumann & Co., H., Johannesburg, £1,628
lis. 6d. f offer £150 cash, already paid, and all the
securities in the bank's possession.
Scanlen, Thomas Charles, Cape Town, £7,630,
assigns the whole of his estate to G. W. Bteytler
and Harry Gibson, official liquidators of Union
Bank, and to D. Mudie and H. J. Feltham, two
of the official liquidators Cape Good Hope Bank.
Strettou, G. A., Johannesburg, £846 lis. 6d. f
offers 8s. in the £, £68 9s. already paid of his
half-share of his debt.
Wolfe, P. R, G., and M. H. 8., London, £1,170,
offer £260 cash, already paid.
Maypu, Chas. K., Klerksdorp, £297 7s. 6d n offers
£26 cash, already paid, and all the securities in
the bank's possession.
IK THB INSOLVENT ESTATB OF D. G. DEVBNISH
AND THB B8TATB OF JAMES LAMB.
Mr. Sohreiner moved for orders varying the
confirmation of the second distribution account in
the said estate, by reducing the amount available
for creditors to the amount received as dividends
from the Cape of Good Hope Bank on the deposit
to the credit of the estate.
The orders were granted.
IB THB B8TATB OF THB LATB WILLIAM
PBBTOBIUS.
Mr. Schreiner moved for authority to the
executor to sell a certain farm known as Retreat,
in the district of Haolear, and to pay the shares of
the minor heirs into the Guardians' Fund, in terms
of the Master's report.
The order was granted in terms of the Master's
report.
IX THB INSOLVENT ESTATB OF SEBASTIAN
VAN BBNEN.
Mr. Searle moved to make absolute a rule nut
for the removal from office of George Hill Duns-
mure, one of the trustees of the said estate, by
reason of his absence from the Colony.
The order was granted.
IN THE ESTATB OF GERT C. OLIVIER AND
DECEASED WIFE.
Mr. Searle moved for authority to sell so much
of the landed property belonging to the estate in
the district of Oudtshoorn as will suffice to pay off
the mortgage debts due thereon.
The order was granted.
THE PETITION OF CHRISTINA WOODCOCK.
Mr. Searle moved for leave to sue by edictal
citation in an action about to be instituted against
petitioner's husband for restitution of conjugal
rights.
The order was granted, and made returnable on
the last day of term.
SUPREME COURT.
MONDAY, NOVEMBER 30.
[Before the Chief Justice (Sir J. H. DE ViL
LIBB8, K.C.M.G.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
DB FBEITAS V. DB FREITAS.
Mr. Shiel appeared for the plaintiff; and Mr.
Molteno f o» the defendant.
This was an action for divorce, instituted by
Joseph de Freitas, a hairdresser, carrying on busi-
ness at Simon's Town, against his wife, by reason
of her adultery with one Antonie de Freitas, her
brother-in-law.
The declaration alleged that the parties were
married in Cape Town in 1881, and that there
were four children of the marriage. It was
further alleged that the defendant committed
adultery in February, 1890, at Wynberg, and at
Simon's Town in August, 1891, with Antonie de
Freitas. The declaration asked for the dissolution
of the marriage, that the plaintiff should have the
custody of the children, and that the defendant
should be deprived of all benefit by virtue of her
marriage in oommumty of property.
The plea admitted the marriage, but denied the
adultery.
Joseph de Freitas deposed that he lived with
his wife happily until his brother, Antoine de
Freitas, arrived in June, 1888, from Madeira.
After his arrival misunderstandings arose. In
November, 1888, he and his wife went to Madeira,
and returned in April of the following year. In
February, 1890, his wife complained of wanting
310
change of air, and she went to Wynberg, where
his brother was managing a business for a friend.
On the 26th August last he arrived home late from
Cape Town, and breaking in the door, went
upstairs and found his wife and brother coming
out of the bedroom partially dressed. He was
very angry, and threatened to kill his brother,
when his wife said " Kick us out, but don't do
anything else." He asked his wife for an explana-
tion, and she said that his brother went into the
room to play with the children and fell asleep. He
had subsequent communication with her, when she
confessed to intimacy with her brother-in-law, and
also with a Portuguese captain. He offered to for-
give her if she turned over a new leaf, but she
refused. After a further confession he even then
promised to forgive her, but when she went
further, and said she was enciente by her brother,
he said that was an offence he could not forgive.
He brought no pressure to bear on his wife to
induce her to cenfess.
Cress-examined : He never struck or kicked his
wife, or made her a prisoner in the house.
Henrick da Silva deposed to witnessing various
familiarities Vetween the defendant and Antonie
in November, 1889.
Cross-examined : He did not like to tell the
plaintiff, because he had been very good to him,
and he did not wish to break up his home.
Besides that he was afraid that plaintiff would not
believe him.
Rev. T. Meagher deposed that on the 8th Sep-
tember last the plaintiff had an interview with
him, and in oonsequence of that interview he
visited his home. He saw the defendant and sug-
gested a reconciliation, but she refused to listen to
him. She admitted being unfaithful to her hus-
band many times. She made this statemtnt in a
calm, deliberate manner, and did not appear to. be
under any coercion.
Mr. Shiel said he had evidence of the adultery
at Wynberg, but as the witness was one of the
plaintiff's children he had some hesitation in call-
ing him to give evidence against his mother.
The Chief Justice said he would take the
evidence for the defence first.
Emily de Freitas deposed that Antonie had
lived with them about four years. In February,
1890, she went to live at Wynberg, but did nothing
wrong with Antonie there. In August last plain-
tiff went to Cape Town, to put one of the children
to school. He did not arrive till late in the night ;
she was waiting for him in company with one of
her children. Antonie was in the bedroom in the
oourse of the evening, in company with her
nephew. Between one and two am. she heard
somebody breaking into the house, and called omt
to Antonie for assistance. He got up, and just
then plaintiff came upstairs, and threatened to kill
his brother with a knobkerrie. Plaintiff accused
her of infidelity, saying that he had been ao
informed by one Jacques March. He was always
illtreating her, and had a most treacherous temper.
She had been beaten black and blue, and kept
a prisoner in the house. In the night of the 7th
September he beat her until from very fear she
confessed that she had done wrong. She told
Father Meagher what he forced her to say.
There was net a word of truth in De Suva's
evidenoe. He could not possibly see into the
room in which he alleged the familial ity took place.
When Da Silva was living in the houBe she did
call him into one of the rooms to assist Antoine,
who had been seized with a fit ; it was a little
room behind the shop.
Cross-examined by Mr. Shiel : The back door
was usually nailed up. The cigarettes found in
her bedroom were left there by Antonie, who in
the early part of the evening was playing with the
children. She did not tell Father Meagher that
she had been forced to make a confession. If her
son swore he saw Antonie sleeping with her at
Wynberg it would be false.
Antonie de Freitas denied the allegations of the
plaintiff and his witnesses. On the night of the
26th August, hearing a soream apparently coming
from the bedroom, he was about to see what was
the matter when the plaintiff appeared armed with
a big stick and threatened to kill him.
Cross-examined : Nothing wrong occurred at
Wynberg, whatever might be said by Louis de
Freitas or plaintiff's son Joseph.
By the Court : He did not nail the back door
up.
Rev. T. Meagher, recalled, said that the plaintiff
seemed to be very fond of his wife, but he might
have been jealous of his brother, having had his
suspicions aroused by some person.
Mr. Molteno having addressed the Court,
The Chief Justice said he would like to hear the
evidenoe of the child in respect to the alleged
adultery at Wynberg.
Joseph de Freitas, plaintiff's son, aged nine
years, deposed that he remembered going to
Wynberg with his mother some months ago. They
lived in Church -street. He saw his uncle Antonie
with his mother in the same bed. They told him
they would put cayenne pepper in his mouth if he
said anything to his father about what he saw.
The Chief Justice, without calling upon Mr.
Shiel, said the Court was of opinion that the
charge of adultery had been established, and
would therefore declare a dissolution of the marri-
age ; order that plaintiff have the care and custody
of the children; and that defendant forfeit all
benefit under the marriage in community of pro-
perty. There would be no order as to costs.
[Plaintiff's Attorney, C. C. Silberbauer ; Defen*
ant's Attorneys, Messrs. van Zyl & Buissinne.]
311
RICHAED8 V. RICHARDS.
Mr. Tredgold for plaintiff ; defendant in default.
This waa an action for restitution of conjugal
rights, bronght by the wife against her husband.
Margaretha Aletta Richards deposed that she
was married on the 27th (September, 1859, at
Bredaedorp. After the marriage her husband and
she went to Kak Bay, Victoria West, Ladismith,
and Humanedorp. At the last-named place he
deserted her, and since 1869 the had never seen
him or heard of him, but was subsequently told
that he bad left for Canada. She was not aware
whether he had any property in the Colony. There
were Wo children of the marriage, both majors.
The Court granted an order, returnable on the
15th February next, calling upon defendant te
let urn to his wife, failing which, an order to be
issued calling upon him to show cause why a decree
of divorce should not be granted, and the property
in the estate equally divided ; personal Bervice, if
possible (failing which one publication in the
Government Gazette and Toronto Globe).
VAN RHYN V. VAN ZYL.
Mr. Schreiner for appellant (defendant in the
Court below) ; Mr. Juta for respondent (plaintiff
in the Court below). This was an appeal from a
decision of the Resident Magistrate of Clanwilliam.
Van Zyl summoned Van Rhyn to recover £4 10s.,
or the price of two cows, valued at £5, less 10s.
due in settlement of an account. The defendant
counter-claimed for £18 15s. balance of account
alleged to be due. Judgment was given for plain-
tiff with costs, and the claim in reconvention dis-
allowed. Against the judgment for eosts the
appeal was made, on the ground that the amount
claimed had been tendered and refused.
After argument,
The Chief Justice said it appeared to him that
this appeal was entirely on a question of costs
The Magistrate seemed to have exeroiFed a wise
discretion, and the Court would be very loth to
interfere in the matter of costs. The appeal must
be dismissed with costs.
[Appellant's Attorneys, Weasels & Standen;
Respondent's Attorney, Messrs. van Zyl A Bus-
sinne.]
WE88EL8' EXECUTORS AND BI8SET V. THE
MASTER OF THE HIGH COURT.
Bond — Sureties — Liability — Ordinao ce 1 04>
sections 21, 27, 33 — Will — Omission to ap-
point executors — Executors dative — Breach
of trust — Master of High Court — Negli-
gence — " Burden of proof" — Interest--
Costs — Appeal.
2s
Per de Villiers, C.J. — In the ordinary case in
which a principal debtor acknowledges him-
self to be indebted in a certain sum for
money advanced, or to be advanced, and
renounces the exception non numerate
pecuuiae this Court would hold, as it did
hold in " De Waal v. Van Zyl " (3 Juta,
188), that the creditor is entitled to pro-
visional sentence against the sureties under
the bond. No proof aliunde would be re-
quired that the amount is due in the absence
of prima- facie evidence that it is not due
wholly or in part In every case, however,
the document sued upon must speak for
itself.
Sir T. Upington, Q.C., and Mr. Sobreiner ap-
peared for the appellants (defendants in the Court
below), and the Acting Attorney-General (Mr.
Searle) and Mr. Giddy for the respondent.
This was an appeal from a judgment of the
High Court of Griqualand West in a case insti-
tuted in June last by Henry Francis Ford (in his
capacity as Master of the High Court of Griqua-
land) against Magdalena Susannah Weasels (widow
of the late Adrian Gerhardus Alexander Weasels)
and John Thomas (in their capacity as the
executors testamentary of the late A. G. A.
Weasels) and John Bisset. The facts appear from
the declaration, the substance of which is as
follows ;
On or about the 16th October, 1879, one Fergus
Conn, in his lifetime a shopkeeper and farmer
residing on the farm Roodelaagte in Griqualand
West, died leaving a will in which he made no
appointment of executors to his estate.
On or about the 4th February, lbfrO, at a meeting
of the next of kin and creditors held pursuant to
an edict duly published in the Government Gazette
of the 19ih December, 1879, Caroline Magdalena
Conn, the wife of the deceased, and Fergus Conn,
an illegitimate son of the deceased, were duly
appointed executors dative of the estate of the
deceased Fergus Conn, and letters of administra-
tion were duly issued to them as such executors.
Thereupon the aforesaid executors dative
entered into a bond of security as by law
required binding themselves to the Mastei of the
High Court of Griqualand in the sum of £10,000
sterling, to be paid on demand, for the due and
faithful administration by them of the aforesaid
estate of Fergus Conn.
In the said bond of security the defendant, John
Bissett, and one Adrian Gerhardus Wessels,
husband of the defendant, Magdalena Susannah
Wessels, bound themselves as sureties in tolidun
and joint principal debtors to the said Master for
312
the payment of the aforesaid Bum of £10,000 under
the express renunciation of the benefits ordinis
divisionis et excussionis.
The condition of the said bond was that if the
aforesaid executors dative should duly and faith-
fully administer the aforesaid estates of the said
Fergus Conn, and render a proper account of their
administration, then the bond should be void and
of no effect, otherwise it should be and remain in
full force and effect.
The aforesaid executors dative did not duly and
faithfully administer the aforesaid estate of the
said Fergus Conn and did not render an account
of their administration, but one of the said execu-
tors, to wit the said Fergus Conn, appropriated to
his own use a large sum of money belonging to the
said estate, and the said executors thus and other-
wise misapplied nearly the whole of the estate,
amounting in value to over £10,000, and on or about
the 10th February, 1886, the Baid executors dative
were removed from their office by an order of the
High Court.
The said Adrian Gerhard us Weasels died on or
about the 27th day of May, 1888, and the defend-
ants Magdalena Susannah Wessels and John
Thomas were the executors appointed by him in
his last will and testament.
Letters of administration have been duly granted
to the defendants Magdalena Susannah Wessels
and John Thomas as executors of the estate of
the said Adrian Gerhard us Wessels.
The plaintiff submits that the aforesaid bond
is in full force and effect, and that the defendant
John Bissett and the other defendants in their
capacity as executors of the estate of Adrian
Gerhardus Wessels are laible to the sum of
£10,000 jointly and severally.
Whereupon the plaintiff claims : (1) The sum of
£10,000 from the defendant John Bissett and the
other defendants, the executors of the estate of
Adrian Gerhardus Wessels jointly and severally,
the one paying, the other to be discharged ;
(2) interest thereon a tempore mora ; (8) general
and further relief ; (4) costs of suit.
The defendants in their pleas denied that the
edict was duly and lawfully published, or that the
appointments were made, and the letters of ad-
ministration issued in accordance with the law —
inasmuch as the meeting held in pursuance of the
edict purported to be a meeting of the next of kin
and creditors, for the purpose of eleoting and
appointing exeoutors dative of the intestate estate
of the deceased, Fergus Conn, whereas the said
Fergus Conn had died leaving a will and not
intestate. That afterwards on the 16th February,
1886, and in consequence of the aforesaid illegal
and informal proceedings, the appointment of
Carolina Magdelena Conn and Fergus Conn, jun.,
as exeoutorB dative, was by order of Court set
aside and declared null and void— and that in con-
sequence of the illegal and informal proceedings
referred to above and subsequent order of Court,
the bond sued upon was of no force
and effect and that the defendants
were neither jsintly nor severally bable
to the plaintiff in the sum of £10,000 as
alleged, or in any other sum. It was further
specially pleaded, in ease the bond should be
held of full force and effect, that on the 17th
December, 1886, a true and final account of the
administration of the estate of Fergus Conn ww
filed and lodged with the Master of the High
Court, and accepted by him as correct ; and that
according to that account there was due to the
heirs of Fergus Conn from the estate £4^22
18s. Id., whioh sum it was agreed between the
Master and Carolina Magdalena Conn, widow of
Fergus Conn, should be paid by her to the heirs
of the estate, and that the Master thereby released
the sureties from their obligation under the bond.
Wherefore the defendants prayed that the plain-
tiff's claim might be dismissed with costs.
The Court gave judgment for the plaintiff in
the sum of £5,681 with costs, and from this
judgment the defendants now appealed.
Sir T. TJpington contended that his clients
should not be held liable for the amount of the
security bond, as the appointment of the executors
was illegal, and that the judgment of £5,000
recorded by the Court below should be reversed
with costs.
SUPREME COURT.
TUESDAY, DECEMBER 1.
[Before the Chief Justice (Sir J. H. DB
VlLLIERS), Mr. Justice SMITH, and Mr.
Justice Buchanan, l
WESSELS EXECUTORS AND BISSET V. THE
MASTER, HIGH COURT.
The Acting Attorney-General (Mr. Searle) was
heard for the respondent.
The Chief Justice : No more grossly mismanged
estate has ever come before this Court, or indeed
before any Court. From the Master of the High
Court of Kimberley, who at the time had control
over its affairs, down to the exeeutors and every-
one connected with the estate, there has been the
grossest mismanagement possible. It would be
somewhat difficulty for this reason to frame
accounts.
Mr. Justice Buchanan : The ease affords a very
313
strong argument in favour ef placing the whole of
the Master's Office work under one responsible
head.
Sir T. XJpington: It shows a scandalous con-
dition of things.
Mr. Justice Smith said he had already stated
that the only clear point was that the sureties had
been grievously injured.
Cur ad pult.
Postea (Deo. 3rd).
The Court delivered judgment :
The Chief Justice said : The late Fergus Conn,
sen., of Griqualand West, by bis will bequeathed
all his property in equal shares to his illegitimate
son Fergus and to his wife and eight legitimate
children, but omitted to appoint any executors of
his will. After his death, in 1879, the then
Master of the High Court called a meeting of next
of kin and creditors for the election of one or
more executors, but gave short notice of the day of
meeting. Thi* was the first of a lamentable series
of blunders committed by himself and others con-
cerned in the management of the estate. The
mistake was rectified, but in the next edict issued
by the Master the deceased was stated to have
died intestate, whereas the intestacy applied only
to the appointment of executors. The edict was
addressed to the next of kin and creditors of the
deceased, whereas under the 21st section of
Ordinance No. 104 it should have been addressed
to the surviving spouse and legatees as well as to the
next of kin and creditors . At the meeting, however,
the surviving spouse and legatees were repre-
sented and took part in the election of executors
and in all the other proceedings, and the existence of
the will was recognised by all present. The
widow and the illegitimate sen of the deceased
were elected and appointed as executors, and on
the 4th of February the defendants passed a bond
in favour of the New Master as sureties, in terms
of the 27th section of the Ordinance, for the due
and faithful administration of the estate by the
executors dative. The administration of the
estate seems to have been left by the widow in
the hands of her co-executor. For more than
three yean he was allowed to mismanage the
estate and misappropriate the assets without, as
far as it appears, any intervention of the Master,
whose duty it was to call the executors to account.
One of the sureties protested against this delay on
the 8rd of March, 1883, but it was not
until 21st of July that the Master awoke to
his duty and summoned the executors to file their
account. Fergus Conn, jun., thereupon absconded
and an account was framed, but not it seems filed,
by the executrix, Mrs. Conn. On the 16th
of February, 1886, the High Court, upon the
application of Mrs. Cenn, removed her and her
oo-exeoutor from their trust on the ground,
as stated by the Judge President in his reasons, of
their misconduct. Thereafter Mr. J. S Stuart
was elected and appointed as exeoutor dative, and
he has framed and filed two accounts, the first of
which relates to the administration of the deposed
executors, and the second to his own administra-
tion. From these accounts it appears that there
are no assets left to pay to the eight legitimate
children the shares whioh they would have been
entitled to reoeive if the estate had been properly
administered and a debt of £150 due to one Van
Dyk. The present Master sued the defendants in
the High Court for the amount of the bond,
namely, £10,000, and that Court gave judgment
for the sum of £6,681 with costs. That judgment
has now been appealed against. There is no plea
on the reoord that the former Master's negligence
debars the present Master from recovery on the
bond, nor has this defence been raised on appeal.
I therefore make no remark on this point except
this, that no greater liability ought to be thrown
upon the sureties at the instance of the Master
than that which strict law requires. The defence
mainly relied upon is that the executors were not
legally appointed, and that therefore the bond
given by the defendants was null and void. In
my opinion this defenoe must fail altogether.
There was no illegality in the appointment of the
executors, seeing that every one who had a right to
be present at the meeting for the election of
executors was in fact present, and took part
in the eleotion without objection. I agree with
the Judge President that although the irregularity
in the form of the edict might have been made a
ground of objection at the time of the meeting, it
cannot, in the absence of such objection, or of
prejudioe to any one, be held sufficient to nullify
all subsequent prooeedingB. The fact that the ap-
pointment of the executors was afterwards set
aside on the ground of misconduct cannot relieve
the sureties from their liability for maladministra-
tion oommitted before the cancelling of the ap-
pointment. The important question next arises,
assuming that the bond is still in force, for what
amount, if any, ought judgment to have been given
against the defendants ? There has been much
discussion in this Court, and in the Court below, as
to whether the burden of proof lay upon the
plaintiff or upon the defendants ; but this question
does not appear to me to be of muoh practical im-
portance in this case. In the ordinary case in
which a principal debtor acknowledges himself
to be indebted in a certain sum for
money advanced, or to be advanoed, and
renounces the exception non numerator pecuniae
this Court would hold, as it did hold in " De Waal
v. Van Zyl" (8 Juta, 188), that the creditor is
entitled to provisional sentence against the sureties
under the bond. No proof aliunde would be re-
quired that the amount .is due in the absence of
314
prima-faci* evidence that it is not due wholly or
in part. In every case, however, the document
sned upon must Bpeak for itself. Now a bond
Riven under the 27th section of the
Ordinance is avowedly given as security for due
and faithful administration by executors. An
amount is fixed to define the extreme limit of the
sureties' liabilities, but without evidence aliunde it
is impossible to ascertain the precise amount of that
liability. By whom should that evidence in the
first instance be famished ? On prinoiple, I
should say by the Master who seeks to enforce the
liability, and in this view Mr. Justice Solomon
seems to oeneur. He considered himself bound,
however, by two decisions of the High Court to
the contrary but as these decisions are not bindiDg
upon this Genrt it is open to us to reconsider
them with the due respect which we owe to the
members of that Court. Let me go to the root of
this matter. The sole interest which the Master
has in the administration of estates is to protect
the interests of creditors, heirs, legatees, and all
other persons having any claim upon the estate.
If he recovers more than is sufficient to satisfy all
claimants he could hardly place the surplus in the
coffers of the Government, muoh less keep it for
himself. He has full power— indeed it is his duty
— to oompel the exeoutors dative to file their ac-
counts with him after the expiration of twelve
months from the granting of letters of administra-
tion. It is no hardship, therefore, upon the Master
that, if he sues upon a bond of security, he should
be called upon in the first instance to furnish
prima-faeie evidence that the amount claimed by
him is required for the due administration of the
estate. When he sues the exeoutors themselves,
their refusal to furnish him with the requisite in-
formation would tell against them in deciding
whethei sufficient evidence has been furnished by
the Master. Where he sues the sureties his
neglect to call the executors to account must tell
against him. In either oase, if no evidence at
all were produced on either side, the judgment
would have to be given against the Master, and
"the burden of proof" therefore, as the terms
are explained by Stephen (Digest of Law of
Evidence, Article 96), lies upon the Master.
Whether he has given sufficient prima-faeie
evidence to shift the burden of proof on to
the defendant must depend on the oiroumstanoes
of eaoh case. Coming next to the details of the
account charge against the defendants, I am of
opinion that the Court below ought not to have
charged them with the amount of the legacies due to
the two executors. The executors themselves, if
sued would have been entitled to the benefit of
the deduction, and the sureties cannot be placed in
a worse position than the principal debtors.
The amount which the plaintiff is concerned
i« claiming ii inch sum as will be
sufficient to satisfy all claims against the
estate. Thoee claims consist, according to
Stewart's account, of a debt of £160 owing to Van
Dyk and the sums due to the eight legitimate
children of the testator. Those ohildren should be
placed in the same position as they would have
been in if the estate had been duly and faithfully
administered. They ought not to be placed in a
worse position, and they cannot claim, nor can the
Master on their behalf claim, to be placed in a
better position as against the defendants. The
Master has received his full fees on the executors'
remuneration of £396 10s., and yet his successor
has refused to allow the sureties the benefit of that
amount. It is true that under the 33rd section of
the Ordinance an executor who fails, without suffi-
cient excuse, to lodge his account in proper time,
forfeits all claim to executors' fees ; but it is a
fairly debatable question whether there should
not first be an order of Court declaring such for-
feiture. But apart from this question, I am of
opinion that the fact that the Master
has charged and received fees on the
executors' remuneration, coupled with the
fact that the inheritances would in the ordinary
course of administration have been subject to the
deduction of such remuneration entitles the sure-
ties to the benefit of the remuneration when called
upon to place the residuary legatees in the position
in which they would have been if there had been
a due and faithful administration of the estate.
As to the item of maintenance for children, the
Court held that the most which could have been
disbursed by the executors on account of the
widow and children was £1,020, leaving a deficiency
of £840. The children, will, of course, be entitled
to the benefit of this latter amount, but on the
other hand they mutt be debited with the
money paid for their share of the maintenance.
As to the item relating to Van Dyk, the decision
>f the Court must have proceeded upon the
assumption that £1,184 had been due to him, and
£884 paid to him, leaving a balance of £160 still
due to him. The Court, therefore, properly
credited the estate with the sum of £160, thus
overcharged, and to the benefit of this
credit the children are entitled. On behalf
of the defendants credit has been claimed for
some items appearing in the first account framed
by Mrs. Conn, including a sum of £649 alleged to
have been paid to one A. G. Weasels for promis-
sory notes and interest. Some vouchers might
fairly have been expected in respect of these
items, and in the absence of such vouchers I do
not think the items ought to be allowed. In
regard, however, to the sum of £676 paid to
Stuart by Haarhoff on behalf of the estate, it
ought to be debited against the children so far as
it has been beneficially expended. Besides the
sum of ^24 9s. 7d., which has beep allowed by the
815
Court as baring been paid to the Master himself,
there are items beneficially expended, amounting
to £106 16s. 6d. One of the unpleasant features
of this mismanaged estate is the enormous sum
absorbed by bills of costs, but unfortunately those
payments cannot be reopened in this appeal.
There is no explanation why the first sum-
mons issued against the defendants in 1884
was withdrawn and a fresh one issued
m the present year. The later summons
prays for interest a tempore morae, but the
Court below by its judgment awarded no interest
at all. The plaintiff, however, is clearly entitled
to interest, and the only question is whether
interest is to run from the date of the first or
from the date of the second summons. As the
plaintiff's counsel has not asked for interest from
the date of the first summons, and as the practice
is to award interest only from the date of the
summons, in respect of which judgment is given,
the interest on the amount found due to the
plaintiff by this Court will begin from the later
date, namely, the 28th of April, 1891. As to the
costs, the defendants will be entitled to their costs
of appeal, but as the Master has really instituted
the action on behalf of the persons interested in
the estate, it is only fair that the estate should bear
them. The result is that upon the accounts as
rectified upon the basis of our judgment there is a
balance due to the plaintiff of £3,308 13s.
instead of £6,681 as found by the Court below, and
tbe judgment will therefore be amended accord-
ingly, with interest from the 28th of April, 1891,
and with costs in the Court below. The costs of
appeal to come out of the estate. It is clearly
understood that should the Master find that the
sum of £160 is not due to Van Dyk that sum will
be refunded to the defendants.
Mr. Justice Smith concurred, and said there ap-
peared no doubt whatever with regard to interest.
The only interest that could be claimed was from
the date of the summons in respect of which judg.
ment was given.
Mr. Searle said that in saying what he had said
about the Master's Office at Kimberley, he pre-
sumed the Chief Justice did not refer to the
present Master.
The Chief Justice : Oh, not at all.
Mr. Justice Buchanan also concurred, and said
that he had worked out the figures in quite a
different way to the Chief Justice, but his figures
came to nearly the same result.
Mr. Searle asked if the judgment referred to all
costs.
The Chief Justice replied that it did.
[Appellants' Attorneys, Messrs. van Zyl <k
Bnissinne ; Respondents' Attorneys, Messrs.
Scanlen £ Syfret.]
8TD BROCK V. BIRT.
Libel — Damages — Action — Settlement by
consent.
Sir T. Upington, Q.C., and Mr. Juta appeared
for the plaintiff, and Mr. Schreiner and Mr. Jones
for the defendant.
This was an action for libel instituted by Miss
Elizabeth W. H. Sturrock against Rev. Richard
Birt. Damages were laid at £6,000.
The fact of the case will be gathered from the
pleadings, summaries of which follow :
The plaintiff's declaration stated : The plaintiff
was at the time of the grievance complained of
and now is agent of a society known as " Tbe
Society for Promoting Female Education in the
East," and then was and now is in charge of a
school at Peelton, in the Colony, supported by the
said society. The defendant is Congregational
minister at Peelton, and an agent of the London
Missionary Society. On or about the month of
May, 1889, the defendant falsely and maliciously
wrote and published in a letter addressed to Miss
Ellen Rutt of and concerning the plaintiff, and of
and concerning her in her capacities in connection
with the said society, the false and defamatory
words following, namely : " Miss Sturrock has the
love of power amounting to a craze, which has
led her into many faults, and I fear
untruths. . . . The people protest against Miss
S. being oentinued here, when her character as
a Christian teacher is lost. I shall also protest
loudly against a teacher who has developed such
an unfitness for further work, and who is not able
to work with us, but is against us. One of the
greatest difficulties in eur work is the sin of
drunkenness, and when her habit of using intoxi-
cants to excess is so well known to all the young
people, as well as to the old, it is time that Miss
Sturrock be recalled from work here. c The very
boys know it,' said a godly woman who was one of
Miss Sturrook'B bible women, to me. A youth of
seventeen, who was still at school, a good
Christian lad, evidently knew of Miss S.'s
propensity. I asked him how he got to know
that, and his reply was * from the girls of our
kraal, including my sisters ; they talk about it .'
The girls, too, on leaving school, passing the
shop have been heard both by natives and
Europeans, to say that "Tangana" (Miss S.'s
Kafir's name) has been drinking again to-day, and
that is why she beats us so.' Can it be possible
that a teacher whose young pupils see her moral
unfitness should be upheld in all her representations,
and whose new scheme for occupying the school
buildings is entertained I 1 In or about the month
of May, 1889, the defendant falsely and mali-
316
oiously wrote and published in a letter to the said
Mi*s Rutt, of and concerning the plaintiff, the false
and defamatory words following : * What she now
uses is bromide of potash, she said. These drugs
alone, or with intoxicants, have blnnted her
moral sense, hence the complaint of untruth-
fulness, hence her violent and unchristian
temper. At any rate, caused by what it may, she
is not the Miss Sturrook she used to be at the first,
nor fit to hold her position We can't
have a teacher forced upon us who has not a clean
bill of moral health, nor is it right that we be
deprived of our girls' day school, the money for
which was given by the Government for Peelton,
and not for outsiders.' " By reason of the libels
complained of the plaintiff has suffered damage in
her credit, reputation, occupation, and otherwise.
The plaintiff olaims : (a) £6,000 as damages for
the grievances complained of, and (6) such further
or other relief as may seem meet, with her coat*
of suit.
The defendant filed the followibg plea :
The defendant admits the allegations contained
in paragraph 1 of the declaration, save and
except that the plaintiff has any just or
lawful grievance as therein alleged. The
defendant admits that he wrote and published of
and concerning the plaintiff ito Miss Ellen Rutt,
the hon. secretary of the * Society for Promoting
Female Bducation in the East,' the words set
forth in paragraphs 2 and 3 of the declaration, or
words similar thereto, but he denies that he so
wrote and published the said words falsely and
maliciously, or that the said words are false and
defamatory as alleged in the said paragraphs. He
s%ys specially that the words alluded to formed
part of certain let* ers addressed by him to the said
Miss Rutt, and he refers the Court to the whole
of such letters when produced. He denies the
allegations contained in paragraph 4 of the
declaration. He says specially that the words
complained of were written by him, as
as minister of religion at Peelton, in
the course of a correspondence with the said
Miss Rutt, relative to oharges and complaints
u:ade against the plaintiff as the schoolmistress
und teacher in charge of a school for youth at
l'eelton, and the said words are true in substance
and in fact, and were written to the said Miss
Rutt bona fide and without any malice towards
the plaintiff, but upon privileged occasions, in
the public interest, in the interest of those in whose
moral welfare he was and is concerned, and in the
discharge of a duty resting upon the defendant to
speak the truth to the said Miss Rutt, in respect
of the character of the plaintiff, and her unfitness
fur the said office of schoolmistress and teacher
held by her. Wherefore he prays that the plain-
tiff's claim may be dismissed with oosts.
Upon these pleadings issue was joined.
Sir T. Upington said it was with very great
pleasure indeed that be had to inform the Court
that that very painful case had been brought to a
satisfactory conclusion between the parties. There
was a consent paper drawn up, which he would
hand in, but would first read in full, as the parties
wished that the Court should hear it. The paper
was as follows : *' It is hereby agreed that this
action be not further proceeded with, the defend-
ant agreeing to withdraw his plea of justification,
and the charges alleged against the plaintiff. It is
hereby agreed that the plaintiff and defendant
each pay their own costs, and it is further agreed
that this paper be placed among the records of the
action, if the Supreme Court will allow it." He
was very glad that the case bad arrived at that
conclusion, for both the plaintiff and the defendant
were people who had done most excellent work-
missionary work — in this country, and be sin-
cerely hoped that that would be an end of any
quarrel between them, and that nothing further
would be heard in the future with regard to
any little differences that might exist between
them.
The Chief Justice said that, in his opinion, the
settlement was creditable to both parties.
Mr. Schreiner said he would like to make a few
observations upon the case. Their lordships
were aware of the nature of the case, which was,
as his learned friend had said, a very painful one.
His client, Mr. Birt, was now about eighty years
of age, and for iLany, many years had laboured at
Peelton as a leading missionary. He felt sure he
was not saying an) thing his learned friend would
coutradict when he said that Mr. Birt wrote, at the
time, under a sense of duty to the congregation
which for so many years he had faithfully served.
He possessed information, collected from various
sources, and he (Mr. Schreiner) did not think he
was speaking against the spirit of the settlement
when he said that the action of Mr. Birt had
been bona fide and without malice toward*
Miss Sturrock, with whom he was long on terms
of friendship in the past. Mr. Birt 'a position had
made it a matter ef some delioaoy for his advisers
to agree to the settlement which had been arrived
at, inasmuch as he was paralysed and in such s
weak state of health that his memory was almost
gone, and he was unable to finish his examination
before the Commission. He felt that the settle-
ment of the action was one suoh as the best friends
of both parties would wish.
Sir T. Upington said that if it was desired by
his learned friend he would at once say that he had
never intended in the case to charge personal
animosity against a venerable missionary like Mr
Birt. He hoped sincerely that they had now heard
the last of the matter for ever, and that some
317
attempt wonld be made to have peace upon this
station.
The Court gave judgment in the terms of the
consent paper.
[Plaintiff's Attorneys, Messrs. Fairbridge &
Arderoe ; Defendant's Attorneys, Findlay &
Tait.]
DD FLE98IS' EXECUTORS V. DU PL ESS 1 8'
EXECUTOBS.
Mr. Searle for the executors of the late J. M. du
Plessis (born Vogelgezang), widow of the late P.
J. dn Plessis ; Mr. Schreiner for the executors of
B. M. du Plessis, the testatrix.
This case was adjourned sine die for the joinder
of P. J. du Plessis' and J. M. du Plessis' repre-
sentatives.
MCKAY V. DE BEERS MINING CO.
Contract — Collateral agreement — Novation —
Appeal — Costs.
Where on appeal the judgment of the Court
below was upheld but on different grounds
to those upon which the judgment of the
Lower Court was founded.
Held (Smith, J., dissenting), that the appeal
should be dismissed with costs.
The Aoting Attorney-General (Mr. Searle) and
Mr. MolteBo for appellant ; Sir T. TJpington, Q.C,
and Mr. Schreiner for the respondent company.
This was an appeal from a judgment of the
High Court of Griqualand West, in an action in
which the present appellant was the plaintiff,
and the De Beer's Mining Company the
defendants.
The facts appear sufficiently from the judgment
of the learned Judge President of the High Court,
which was as follows :
la this action the plaintiff sues the defendants,
as Trustees of the De Beer's Mining Co., Limited,
for the sum of £180, as due to him under a
contract made between the parties in February,
1888, and annexed to the declaration.
By this contract the defendant oompany pur-
chased from the plaintiff a half share in certain
farms and other property situated in the S. A.
Republic, upon the condition inter alia that the
purchasers should " pay the wages due to the
caretakers on the said farms from February 1st,
1888."
The plaintiff in his declaration also alleged that
it was subsequently arranged between the parties
that the defendants should pay these wages to
him, and he should pay them over to the care-
takers.
in the course of the case, however, his counsel
intimated that he did not rely on the allegations
contained in paragraphs 6 and 7 of the declaration,
and that he based his claim exclusively on the
terms of the original contract.
The sum of £180 is claimed on account of wages
paid to a caretaker on the farm, either, I presume,
as money paid by the plaintiff at the defendants'
implied instance and request, or as damages
sustained by him by reap on of their breaoh of
contract to pay the caretaker themselves. The
defendants plead infer alia that on March 81, 1888,
all the assets and liabilities of the De Beer's
Mining Company, Limited, including the property
acquired under this contract, were transferred to
the De Beer's Consolidated Mines Limited, and
that the obligations created by this Contract were
transferred to the latter Company, with the
knowledge and consent of the plaintiff, who
accepted the De Beer's Consolidated Mines as a
party to the contract in lieu of the defendant
oompany. At the close of the plaintiff's case, the
defendants applied for absolution from the in-
stance on the grounds: : (1). that this plea had
been established by the plaintiff's evidence ; (2).
that in any case the plaintiff had f ailed to esta-
blished his claim. After hearing argument on the
first of these two grounds, the Court reserved its
judgment on that branch of the case. I am
usually reluctant to grant absolution at thiB stage
of a case, lest, in the event of the judgment of this
Court being held erroneous on appeal, the result of
such non-suit should be to involve the parties in
the delay and expense of what practically amounts
to a new trial ; but when we are pressed for a
decision on such an application, we are bound to
give it to the best of our judgment on the facts
before us. The real question is, whether the
novation of contract pleaded by the defendants
has been proved to have taken place. Now, as
Pollock says, m the passage cited by Counsel,
" Whether there has been a novation in any
particular care is a question of fact, but assent to
a novation is not to be inferred from conduct
unless there has been a distinct and unambiguous
request": Pollock en contracts, 4th ed. 198;
Conquest's case, 1 Gh. D. 334. Voet's statement of
the law is much to the sam a effect. He dissents
from Groenewegen's view that, under the modern
civil law, following Justinian's constitution on the
subject, a novation must be in express terms :
Maffis tamen est, he say?, ut cum aliis exislimemus,
etiam ex oonjecturis prasumtionem novationis induct
nunc posse, si illxe adeo verisimiles ac urgentes sint, ut
ex its perspicuum esse possit, a prima obligatione
partes recedere et illatn in secundam transferre
voluisse ; ut ita tacita sed satis perspicuat, idem, qui
expresses, voluntatis effectus sit : quod forte nee ipsi
juri civili novissimo adtersatur ; dum Justinianus
const it uit, voluntate solum, non lege novandum,
318
adeoque solas reprobat conjectural lege magi* quam
probabili partium voluntate svbnixas : XLVI ii : 3.
The English cases quoted are to the same effect,
namely, that a novation may he presumed from
conduct, but that the evidence required to support
such presumption must be of a cogent character.
Thus in one of the two cases in re National Pro-
vincial Life Assurance Society, (L. R. 9 Eq. 306,) it
was held on the facts that ihe party's conduct did
disclose, and in the other, that it failed to disclose,
a complete novation of contract. In the very
strong case In re Family Endowment Society,
relied on by the plaintiff, it was held that " strict
proof will be required before it is held that a
creditor of a Company, under a special contnct,
has accepted the liability of another Company
with which the first is amalgamated " (L R. 5 C.A.
118); and in In re Manchester and London Life,
<*c, Association, L. R. 9 Eq. 643, it was held that,
in the absence of any evidenoe of notice of the
transfer of the business and assets of ene com-
pany to another, or assent thereto by the creditor,
the former company was stll liable to the
creditor's claim. In each of these oases the
question seems to have been whether the conduct
of the creditor was consistent * with his having
regarded the new company merely as th t agents
of that with which he originally contracted, or
whether he accepted the former as the delegates
of the latter. In the present case, we have to
decide a similar question on the facts as proved.
Now it is not disputed that, very shortly after this
contract was made, on March 3lBt, 1888, the De
Beer's Mining Company transferred their liabi-
lities and assets to a new company called the De
Beer's Consolidated Mines. It was stated, I
think, by the Crown Prosecutor in opening the
plaintiff's case, that the contract now in question
was ceded to the new company in the following
October, and, however that may have been, it is
admitted that the property transferred by plaintiff
to the De Beer's Mining Company was sub-
sequently re-transferred in the Transvaal Land
Registry to the De Beer's Consolidated Mines.
Of these transactions no formal notice was ever
given to the plaintiff, but he admits that he was in
fact aware that the new company had taken over
the diamond mining property at De Beer's of the
Defendants, and that this contract for the acquisi-
tion of certain coal-bearing farms, had been made
on account of and in connection with that
Diamond Mining property. Up to the month of
November, 1888, the plaintiff continued to receive
for the caretaker's wages, the cheques of the De
Beer's Mining Company. A change then took
place, and from that date he received the cheqnes
of the new company f er Buch payments, and gave
receipts to them, both for the wages and for
certain ether expenses incurred by him in con-
nection with the contract. It was stated by his
counsel that the plaintiff in acknowledging osm-
munications from the new company was always
careful to address his replies to the " De Beer's |
Mining Company," but as a matter of fact I find
that his letter of May 14, 1889, was addressed to
" W. Craven, Esq., Secretary of De Beer's C. M.
Ld," the letters "CM." clearing standing for
" Consolidated Mines," and his next letter of
May 16 is addressed in full to "W. Craven, Esq.
Secretary De Beer's Consolidated Mines, Kimber-
ley." Up to the time, however, it might perhaps
be contended that the plaintiff regarded the new
oompany merely as agents for the defendata, and
it is suggested that he may have regarded the
defendant company aB Btill in existence, and still
owning the half share of the coal farms purchased
from him. The suggestion, however, that they '
might for all he knew have been retaining tiiis Jfl
coal for other purposes elsewhere is inconsistent,
not only with the nature and object* of the
oompany, but with some expressions contained in
the plaintiff's letter to Mr. Craven of May 16,
above referred to, in which he speaks of the
increased Railway facilities for bringing coal from
Waldrift to Kimberley where he admits that he
was aware that the mi ning property of the defen-
dants had been taken over by the new company.
Moreover, whatever may have been the plaintiff's
position up to this date, he tells us that about the
middle of May he had an interview with Mr.
Craven, at the office of his company, at which Mr.
Craven asked him to hand him the original agree-
ment in order to endorse thereon the cession which
had been made to the Consolidated Mines. He
refused, however, to do this, and on May 20 Mr.
Craven wrote to him :— ** I noticed when yen
produoed your memorandum of agreement to me
the other day, that the cession from the trustees
of the De Beer's Mining Company to the trustees
of this oompany had not been endorsed upon it ;
will you kindly bring the document up to have
the endorsement made ?" To this letter the
plaintiff made no reply, but I find endorsed upon
it these words, whatever they may mean : u P. S.
— My agreement is with the De Beer's Mining
Company, Ld. D. McKay. May 20, 1889." This
endorsement was certainly not a postscript, and
does not appear to have been communicated to the
writer of the letter. (H»s Lordship here pro-
ceeded to refer to certain dicta of the Court of
Appeal in the recent case of Weideman* vs.
Walpole, reported in the Times of July 30th, as to
the inferenoe to be drawn from receipt of com-
munications on matters of business to which no
reply was sent ) Now what took place at this
interview, in May, 1889, and the terms of Mr.
Craven's letter of May 20th are quite inconsistent
with the plaintiff's statement that Mr. Cravens
letter of October 2nd, 1890, was the first ink-
mat ion ihe received that the rights aoquired by this
319
•e
contract had been ceded by the old to the new
p company. After May, 1889, it cannot be held that
the plaintiff was entitled to regard the Con-
solidated Mines as merely the agents and not the
oessionaires of the defendant company. Still it
may be urged that mere knowledge, unaccom-
panied by consent, is not sufficient to create a
novation ; but the subsequent conduct of the
plaintiff seems clearly to imply such consent. In
the following August he proceeded to the farms
and there personally handed over the machinery,
plant, quarters for labourers, 4c., to Mr. Austin,
whom he admits he knew to be the agent of the
new company ; and Mr. Austin subsequently gave
his son, the caretaker, notice that his services were
no longer required, he went, acting under advioc
om Mr. Battrhoff, to Mr. Craven, as Secretary to
be Company, to complain of this proceeding.
On the whole I can come to no other con-
clusion than that the plaintiff's conduct has been
such an to preclude bim from new denying the
alleged novation, and that this plea has therefore
been est ablished.
I confess that what has most perplexed me in
this case is to understand the plaintiff's reason for
not suing the new company.
It is perfectly clear that after all that has taken
place, they could not have denied their liability on
the contract, he admits that he is quite satisfied as
to their being in a position to meet any claim he
may have against them ; and he adds that, if the
defendants had given him formal notice ef the
cession, this action would never have been
brought. No doabt it would have been better if
such notice had been given, but an action of this
kind cannot be maintained merely on the ground
of an apparent lack of courtesy, perhaps attri-
butable to inadvertence.
With regard to the second ground on which the
application for absolution was based, it has not
been argued and it is unnecessary to discuss it ;
but perhaps I ought to add that the Court, in
holding that the Consolidated Mines are now the
proper parties to be sued on this contract, is not to
be taken as laying down that the plaintiff has
disclosed a good cause ef action against that
company.
Whether the effect of this contract was to bind
the defendant company, or their successors in title,
for all future time to pay such caretakers, as the
plaintiff might choose to appoint suoh wages, as he
might think, or as the Court might think, to be
fair and reasonable, or whether on the other hand,
the agreement merely gives the plaintiff a ground
for suing for damages for breach of contract,
should he sustain suoh damage by reason of the
company not performing its undertaking, or
whatever may be the precise legal effect of this
stipulation, is a matter which the Court cannot
detox mine until the proper parties are before it.
2t
1 would only venture to express a hope, in the
plaintiff's interest, that, before running the risk of
further litigation, he will be careful to assure
himself that his position is a sound one.
The Court grants absolution from the instance
with costs.
From this judgment the plaintiff now appealed.
The Acting Attorney-General, Mr. Searle, was
heard in support of the appeal.
Sir T. Upington said that apart from the nova-
tion altogether the plaintiff could not succeed on
the contract itself, and submitted that even if the
decision of the Court below had been given for
insufficient reasons — which was net the case for
a moment— he submitted that the judgment should
be maintained.
The Chief Justioe gave judgment. His Lord-
ship said it appeared to him that the pleader who
drew the declaration felt that he could not
Bucceed upon the agreement alone, and that he
then inserted the 6th and 7th paragraphs of the
declaration, which referred to a tubsequent
collateral agreement, by whioh an understanding
was arrived at between the parties, as to the true
meaning of the agreement, namely, that the com-
pany should pay to the plaintiff, from time to
time, the wages already due and to become due to
the caretakers, the plaintiff on his part under-
taking to pay the money to the caretakers. But
when the case was heard the 6th and 7th para-
graphs were withdrawn, and the plaintiff relied
only upon the rest of the declaration. In his
opinion the withdrawal of those paragraphs
carried with it the failure of the plaintiff's case
altogether because upon the agreement he could
not, in his opinion, succeed. The grammatical
reading of the agreement would be that the De
Beers Mining Company were to pay the wages
from January 1 to February 15 only, but they
might take it that future wages were also referred
to. Still, the plaintiff could not succeed unless he
could go so far as to convince the Court that ho
was to have the sole appointment of the caretakers
and the company the sole privilege of paying for
their services. The payment of the caretakers
carried some weight as to their appointment. The
plaintiff claimed the right of appointing all future
caretakers at the defendant's expense. That, in
his opinion, the plaintiff could not do. There
was no proof that Austin was not on the farms
as caretaker, and it did not appear that the
company had refused to appoint its own care-
takers. He considered that the plaintiff had
failed to make out his case, and that absolution
from the instance had been rightly given. As to
the question of a novation, he confessed he should
find great difficulty in agreeing with the Court
below. He was not satisfied that the plaintiff
could have sued the De Beers Consolidated Mines
Company, or that that company would not have
320
had a good defence if he had done bo. Ab to
cost*, he was of opinion that the judgment waB
right, and that although the Court below gave
different reasons for its decision than those which
he was inclined to give, that should not affect
the question of costs. The appeal would there-
fore be dismissed with costs.
Mr. Justice Smith concurred, but said that as
only the question of novation had been decided,
he thought the plaintiff had very fairly appealed.
It seemed a somewhat hard thing where an A ppeal
Court reversed the judgment of the Court below
on the only question which that Court decided,
that the appellant should have to pay his own
costs. For that reason he was of opinion that the
appeal should be dismissed, but without costs.
Mr. Justice Buchanan also concurred, and con-
fessed that at first he had some doubt as to the
question of costs, but said the ordinary practice
was that where no substantial alteration was made
in the judgment the appeal should be dismissed
with oosts, and as that was the case in the present
instance he concurred in the judgment of the Chief
Justice.
[Appellant's Attorneys, Messrs. van Zyl <fe
Buissinne ; Respondents' Attorneys, Me* sirs.
Scanlen and Syfret.]
SEAVILL V. COLLEY.
Lex Anastasiana — Promissory note — Cession
— Purchase of rights under judgment —
Counter claim— Appeal — Practice of the
Dutch Courts — Right of retraction —
Customs of commerce — Abrogation of laws
by disuse — Obligatory force of the body of
Dutch laws existing at the beginning of
the present century.
Per De Villiers, C.J. — All modern commercial
dealings proceed upon the assumption that
binding contracts will be enforced by courts
of law, and that debtors do not evade
liability in full by reason of their creditors'
dealings with their debts, provided only those
dealings are bona fide and in accordance
with law.
Now, as to any statute enacted by the Legis-
lature of this Colony, I should have great
difficulty in holding that disuse for any
length of time would be sufficient to abrogate
it. If such a statute is no longer required,
the Legislature, which must be presumed to
be acquainted with the body of its own
statute laws, is at hand to enact the repeal.
But the body of laws introduced from
Holland, including Dutch statutes, stand on
a different footing. They are not to be
found in any code or authentic document to
which easy reference con be made, and it is
often only through a judicial decision upon a
disputed question of law that the Legislature
becomes aware of the existence of a parti-
cular law. The conclusion at which I have
arrived as to the obligatory force of the
body of Dutch laws existing at the beginning
of the present century may be briefly stated.
The presumption is thai every one of these
laws, if applicable to the circumstances of
this C olony and not repealed by the local
Legislature, is stilt in force. This pre-
sumption will not, however, prevail in re-
gard to any rule of law which is inconsistent
with South African usage. The best proof
of surh usage is furnished by unoverruled
judicial decisions. In the absence of suck
decisions the Court may Vihe judicial notice
of any general custom which is not only well
established but reasonable in itself. Any
Dutch law which is inconsistent with snek
well-established and reasonable custom, and
has not, although relating to matters of
frequent occurrence, been distinctly recog-
nised and acted upon by judicial decision,
may fairly be held to have been abrogated bf
disuse. The law of retraction as applied to
the sale of debts is inconsistent with the
reasonable and well-established custom of
persons engaged in commerce in this
country, and, 'tntil the recent decision in the
Eastern Districts Court, it had not been
recognised and acted upon by the superior
Courts of the Colony, although numerous
cases must have arisen to which it wot
applicable. It had therefore practically
been abrogated by disuse and was npt
revived by that judgment.
The Acting Attorney -General (Mr. Searle)
appeared for the appellant.
This was an appeal from a judgment of the
Resident Magistrate of Kimberley.
The appellant (defendant in the Court below)
was sued on certain six good-fors amounting to
£48 19s., and on a promissory note for £23 16t>
With regard to five of the good-fora amounting to
£32 6s. 6d., appellant pleaded that they had been
given before his insolvency and that so much of
321
plaintiff's claim was extinguished. With regard
to the sixth good-for £16 12s. 6d., he pleaded that
he had already paid that amount by cheque. He
acknowledged his indebtedness on the balance, but
counterolaimed for the sum of £40 being the
amount of a judgment on a promissory note
obtained in the suit of Borcher v. Colley and oeded
by the plaintiff in that case to Messrs. Lyons and
Stone on the 22nd October, 1891, the right to
which was purchased by appellant from the latter
firm for £33.
The Magistrate gave judgment for the plaintiff
for -£23 16s., with costs and dismissed the counter-
claim on the grounds that the note had been paid
by Ijyons in August, 1891, consequently when
Borcher ceded the judgment to Lyons on the 22nd
October, 1891, it had been already satisfied and
the debt extinguished so far as he was concerned,
and that he (Borcher) no longer had any interest
therein. (Although not stated in his reasons the
Magistrate appears to have been in doubt as to
whether an original debt ef £40, which had been
purchased for £30, could be made the subject of
counterclaim for the original amount of the debt
namely £40.)
From this judgment the defendant (present
appellant) now appealed.
Mr. Searle was heard in support of the appeal.
Cur ad vult.
P/j*tca (Dec. 14.)
The Court delivered judgment.
The Chief Justice said : A most important
question has arisen in this case, which although
touched upon in previous cases, has never yet been
decided by this Court. The question is whether
a person to whom a debt has been sold and ceded
for less than its amount oan recover from the
debtor mere than the cessionary himself had paid
for it with interest from the date of such payment.
The Dutch law on the point has been most care-
fully and exhaustively considered by the judges of
the Eastern Districts Court in the recent case of
** Deschamps v. Van Onselin."* There was a
difference of opinion as to whether that case fell
within the well-known exceptions of the general
rule of the Dutch law, but I take it that the Judge-
President, who dissented from the judgmeut,
agreed with his colleagues as to the existence of
the general rule. The rule, according to the
weight of authority, was that when a debtor was
sued upon a ceded right of action he could,
within a year after he became aware of the
cession, require the plaintiff to declare on
oath what specific amount had been paid
an the price and discharge himself by tender-
ing the same amount. This rule is often re-
• For judgment in this ease vide Appendix.— Ed.
ferred to as the Lex Anastasiana, but, as pointed
out by Groenewegen (Ad. Cod. 4, 35, 23), the con-
stitution of Anastasius and the amending consti-
tution of Justinian had been virtually abrogated
by the practice of the Dutch Courts, saving only to
the debtor what was known as his right of retrac-
tion. Vset also (18, 4, 18) speaks of the rule as
having " grown up in our practice," and treats it as
a branoh of the law relating to retraction. The
right of retraction was not confined in the Nether-
lands to the sale of debts. Over the greater por-
tion of Holland the nearest relatives of a person
who had sold his own land had the right, within a
year after the sale, to step into the purchaser's
place and demand a completion of the sale in their
own favour. In Rhineland the nearest neighbours of
the seller had the same right. It is not surprising
that fetters like these upon the free alienation of
property were not generally approved of, and
that frequent attempts were made to confine
their operations within the narrowest possible
limits. "I am not ashamed," sajs President
Bynkershoek (Qu. prh. jur t 3, 13), "to confess
that, in my opinion, every form of retraction,
which is now-a-days in use with us, from what-
ever source it may have its origin, savours of the
utmost unfairness, inasmuch as it robs the pur-
chaser of his honestly acquired right, in order to
prop up a policy which is of far less importance
than the enforcement of contracts." Sande, in
his treatise on the 4t Cession of Actions " (11, 25),
seems to hold that the right of retraction must
be confined to such debts as are of a doubtful
nature, and he adds that it had been frequently
decided by the Parliament of Paris that the
Imperial Constitutions already mentioned do
not apply to persons to whom liquid or undoubted
rights of action had been ceded. If his
view and that of other writers whom I
have consulted be correct, only such trans lo-
tions as would, by the English law, amount to
" maintenance " were int ended to be reached by
the law of Anastasius. But I will assume that the
general rule, as I have already stated it, formed
part of the law of the Netherlands at the time
when the first Dutch settlers arrived in this
country. Does it then necessarily follow that the
rule is still in force in this colony ? The first
settlers carried with them only those laws which
were applicable to the circumstances of the
country. The law of retraction, as applied to
immovable property, was not general throughout
Holland, and I take it for granted that it was
never introduced in this colony. Certainly no
instance can be found of itB recognition. The law
of retraction, as applied to debts, was, so far as it
went, general in Holland, and there was no reason,
arising out of the circumstances of this
country, why it should not be introduced here.
But it is a notable circumstance that, although no
322
transaction is or has been of more frequent
occurrence in this colony than the sale and trans-
fer of debts, no decision of any of the Supreme
Courts, except the recent oase in the Eastern
Districts Court, can be found in which the Dutch
law of retraction has been recognised snd acted
upon. This would be no ground, if the law
were in itself a reasonable one or con-
sonant with the requirements of commerce, for
refusing to recognise it now. But I can see no
reason why a debtor should escape liability for
the judgment of bis whole debt merely because the
creditor has thought fit to sell it for less, provided
only the sale be a bona-jide one. As pointed out
by the Judge-President in his judgment, creditors
no longer in commerce have the power over their
debtors whioh they had at the time when the rule
was int reduced. In regard to commercial practice
and requirements, if the Court no longer takes the
evidence of the tnrba testium or crowd of wit-
nesses mentioned by Dutch writers, it is not de-
barred by its rules of evidence from taking judicial
notioe of customs in use among persons engaged in
commerce. I should be surprised if there were
a single merohant or banker in South Africa
who, if he had bought a bill of exchange, whether
before or after maturity, for less than its nominal
amount, would consider himself foreclosed from
recovering the full amount of the bill from the
acceptor. All modern commercial dealings pro-
ceed upon the assumption that binding contracts
will be enforced by courts of law, and that debtors
do not evade liability in full by reason of their
creditors' dealings with their debts, provided only
those dealings are bonajide and in accord cnoe with
law. If this assumption is unfounded, we are
bound to Fay so, but is it unfounded ? An
answer to this question involves tlie discussion
of the much controverted point whether or not
disute may modify or abrogate a law admitted
once to have been binding. There is a passage
in the Digest (13,32) which, if taken literally
and without qualification, would settle the poiiit
"The doctrine," says Julianus, <4 has been most
properly accepted that laws are abrogated, not only
by the vote of the legislator, but also by the tacit
consent of all through disuse." It would serve no
useful puipose to quote the remarks made by the
many commentators upon this passage, and upon
analogous passages in the Code. Voet (1,3,37)
would seem to ctnfine the operation of the doctrine
to countries in which a democratic form of govern-
ment prevails, that is, in which the power of
legislation rests with the people as distinguished
from those in which the power has been delegated
to a pr incept. It is not clear what his view would
have been in regard to countries like ours, in
which the power is delegated to a representative
body elected by qualified electors. He admits,
however, that there are instances, and his com-
mentaries are full of such instances, in whioh well-
established laws have been deprived of their obli-
gatory force through not having been acted upon
for a long series of years (1, 3,41). Vander Linden
(1, 1,7) says that customs which are feunded on
good reason and have been properly proved are
not only of force where the written law fails, but
have even this force, that they may abrogate the
written law. By the written law 1 presume he
means the Roman law ad embodied in the corpu
juris. In his chaper on " Punishments " (2, 2), he
mentions several which had been abolished through
disuse. He mentions several others as being in
use in his time which, although not abolished by
our Legislature, would be as impossible at the pre-
sent time as if they had been actually abolished.
Among these punishments are " breaking on the
wheel with or without decapitation, whipping with
or without the halter on the neck, and with or
without being branded with a hot iron, public
exposure en the scaffold with or without rods, and
the begging pardon of God and the Court of
Justice on bare knees." Now, as to any statute
enacted by the Legislature of this colony, I should
have great difficulty in holding that dis-
use for any length of time would he
sufficient to abrogate it If suoh a statute
is no longer required, the Legislature,
whioh must be presumed to be acquainted with
the body of its own statute laws, is at hand to
enact the repeal. But the body of laws intro-
duced from Holland, including Dutch statutes,
stand on a different footing. They are not to be
found in any code or authentic document to which
eaey reference can be made, and it is often only
through a judicial decision upon a disputed
question of law that the Legislature becomes
aware «»f the existence of a particular law. The
conclusion at which I have arrived as to the
obligatory force of the body of Dutch laws exit-
ing at the beginning of the present century may be
briefly stated. The presumption is that every one
of these laws, if applicable to the circumstances of
this colony aud not repealed by the local Legisla-
ture, is still in force. This presumption will not,
however, prevail in regard to any rule of law which
is inconsistent with South African usage. The
best proof of such usage is furnished by
unoverruled judicial decisions. In the absence
of such decisions the Court may take judicial
notice of any general custom which is not only
well established but reasonable in itself. Any
Dutch law which is inconsistent with such well-
| established and reasonable custom, and has not,
although relating to matters of frequent occur-
rence, been distictly recognised and acted upon by
judicial decision, may fairly be held to have been
abrogated by disuse. The law of retraction as
applied to the "sale of debts is inconsistent with
the reasonable and well-established custom of
323
persons engaged in commerce in this country, and,
until the recent decision in the Eastern Districts
Court, it had not been recognised and acted upon
by the superior Courts of the Colony, although
numerous cases must have arisen to which it was
applicable. It had therefore practically been abro-
gated by disuse and was not revived by that judg-
ment. The case with which we have to deal is an
appeal from the Resident Magistrate's Court of
Kimberley. The defendant, who had been sued
on some good-fors and a promissory note, filed a
counter-claim for £40 upon a promissory note
for that amount, made by the plaintiff in favour
ef one Borcher, ceded by Boroher after maturity
to Lyons A Son, and by them ceded to the
defendant. At the time when Borcher oeded
the note he appears also to have ceded to Lyons
6 Son the right to a judgment obtained by him
against the plaintiff on the promissory note of
£40, but no formal cession of the judgment was
made until some months afterwards. The Magis-
trate held that as the judgment had been satisfied
by Lyons & Son, it was no longer capable of being
ceded. But the formal cession purports to be made
by virtue of an undertaking entered into at the time
when the claim was bought. In the absence of proof
that such an undertaking was not entered into,
there was nothing to prevent Lyons <fe Hon from
making a formal cession of the judgment even
after it had been paid. In any case the defendant
was also the legal holder of the promissory note
for £40. This note he had only bought for £30.
The question still remains whether the plaintiff
would have be* n entitled to a discharge of his
debt by a tender of £30. There is nothing to
show, nor has the Magistrate found, that the pur-
chase of the note and judgment was not a real and
bona-jide purchase. For the reasons which I have
already stated, I am of opitiiou that the judgment
should be for the full amouut of the note. The
appeal must therefore be allowed, and tne Magis-
trate's judgment amended by allowing the counter-
claim, with costs in this Court and in the Court
below.
Their lordships concurred.
[Appellant's Attorneys, Messrs. van Zyl 6
Bnissinne.]
SUPREME COURT.
THURSDAY, DECEMBER 3.
[Before the Chief Justice (Sir J. H. DB
Villi ers, K.C.M.G.), Mr. Justice Smith,
and Mr. Justice BUCHANAN.]
PROVISIONAL KOLL.
DANIEL AND CO V. 8IEBERT AND VAN EEDEN.
Provisional sentence — Lease — Arbitration
clause — Repairs — Rent.
Mr. Schreiner appeared for the plaintiffs, and
the Acting Attorney-General (Mr. Searle) for the
defendants.
This was an application for provisional sentence
for £8 6s. 8d., rent due under a lease. The agree-
ment of lease oontained, inter alia, an arbitration
olause, by which it was stipulated that all differ-
ences arising out of the agreement should be
settled by arbitration. It appeared from affidavit
that before the lease had expired the roof of one of
the out-offices was blown off by the violence of the
wind. Upon the plaintiffs (the lectors) re-
fusing to reconstruct the roof the defend-
ants (the lessees) had the work done,
deducted the cost from the rent, and
tendered the balance to the p'aintiffs, which
the latter declined to accept. The plaintiffs now
prayed for provisional sentence for the entire rent
due, and contended that the defendants were,
under a clause in the agreement, bound to keep
the premises in repair, and that the re construction
of the roof was a repair contemplated by the
agreement.
Mr. Searle: (1) This is not a caBe for pro-
visional sentence, the lease has expired, and the
document upon which provisional sentence is
prayed has lost its liquidity. Council referred to
" Green <fe Co. v. Beveridpe " (8 Juta, 46). (2)
Under the clause in the agreement the parties
should have gone to arbitration, " Davies v. The
South British Insurance Company " (8 Juta, 416),
" Van der Spuy v. The Paarl Bank" (7 Juta, 246).
The Chief Justice : The Court has always held
that parties are bound by their agreement, but
the question is how far does the agreement
extend.
Mr. Searle : In any case the action ought to
have been brought in the Magistrate's Court (Act
20 of 1866, sec. 84). (3) The replacing the roof is
not a repair. The roof was blown off by a vis
ma}' r. It is a reconstruction, and the lessor is
liable for reconstructions and restorations. Coun-
sel referred to " Grotius and Voet," 19, 2, 14.
324
Mr. Sohreiner : The arbitration clause is void
owing to its vagueness. No provision has been
made for the appointment of arbitrators. The
jurisdiction of the Court is not ousted. The case
could not have been brought in the Magistrate's
Court, as the parties are nvt within the Magis-
trate's jurisdiction. Under their«agreement the
lessees were bound to keep the premises in repair,
and were not entitled to deduct the cost of
replacing the roof from the rent. Counsel referred
to "Van Leeuwen," Cen. For., 4, 22, 10; the
Dutch Consultations. Act 8 of 1879, sec 7, and
" Woodfall on Landlord and Tenant." 482.
The Chief Justice gave judgment. In doing
so his lordship said that the decisions in
Davies and Van der Spuy's oases came
briefly to this, that where the parties them-
selves had agreed to refer disputes to
arbitration, and had appointed a tribunal for the
purposes of such arbitration, they were bound by
the agreement, and could not come into court
until they had attempted to act under the agree-
ment. In the present case it was urged that no
tribunal was provided. That contention would have
been a very sound one if the plaintiff himself had
sought to go to arbitration. If he had made such
an attempt, and it bad been discovered that no
tribunal could be found under the agreement, but
the plaintiff had not satisfied the Court that any
attempt had been made to find a proper tribunal.
That being so, the defence which had been raised
was a good one. The agreement was clear on the
point, and all differences arising under it were to
be referred to arbitration, and the defendant was
entitled to **»e benefit of the agreement. Pro-
visional seitcsnce must be refused with cost*.
Their lordships concurred.
CAB8ELL V. SCHUNKE.
Mr. Tredgold moved for provisional judgment
on two bills of exchange for £50 and £32 10s. 9d.,
with interest from 7th October, 1891.
Provisional sentence was granted.
KAFFRARIAN COLONIAL BANK V. BCIIUKKE.
Mr. Tredgold moved for provisional judgment
on a promissory note for £50.
Provisional judgment was granted.
CAPOBN AND MARRIOTT V. E6TERHUTZEN.
Mr. McLachlan moved for provisional judgment
for £72 7s. Id. on two promissory notes, less £ 1
paid on account.
provisional judgment was granted,
ADMISSION.
On the motion of Mr. Thome, Mr. H. 6. S.
Smith was admitted as a notary and conveyancer.
REHABILITATIONS.
The Court granted the following rehabilitations :
Frederic Catly Murray, Christiaan Johannes
Britz, James George Reed, and Johannes Wynand
Louw de Waal.
GENERAL MOTIONS.
PETITION OP MYRA HARVEY.
Mr. Castens moved for leave to sue in forma
pauperis in an action against petitioner's husband
for divorce by reason of his adultery and cruelty.
The matter was referred to counsel for his
certificate.
PETITION OF MARIA MAGDALENA VAN BLERK.
This matter, a petition for leave to sue in forma
pauperis in an action against Frederick Lucas
Lindenberg in respect of the administration of
her property, was referred to Mr. Castens for
report.
IN THE E8TATE OF THE LATE WM. PATTINBON.
Mr. Tredgold moved for authority to the Regis-
trar ef Deeds to cancel certain bonds on
security of landed property in Port Eliza-
beth for balance of purchase price and
" kinderbewys " due by the said Pattinsen, the
bonds in question being lost, and no claims having
been filed in respect thereof.
The Court granted a rule nisi, returnable on
January 12, calling on all persons concerned to
show cause why the cancellation should not be
made.
PETITION OF MARKS COHEN.
Mr. Maskew moved for authority to pass
mortgage bonds to secure the balance of the
purchase price of certain landed property, part of
the estate Zonnebloem, bought in trust for
petitioner's minor daughter.
The order was granted.
PRINCE V. PRINCE.
On the motion of Mr Jones, leave was given
applicant to sue in forma pauperis in an action
against her hnsband for divorce by reason of bis
malicious desertion.
325
GEDULD V. GEDULD.
On the application of Mr. Tredg old the Court
granted a rule nisi in this matter returnable on
the 10th inst.
SMITH AND CARTER V. VAN BTAADBK ex parte
VAN ST A ADEN.
Act 20 of 1886, section 33, Schedule B—
Refusal of Magistrate to transmit record
to Registrar of Supreme Court.
Mr. Juta moved for an order compelling the
Resident Magistrate of Matatiele to transmit to
the Registrar of the Supreme Court the record in
the case of Smith attd Carter v. van Staaden tried
before the Assistant Resident MagUtrate of
Matatiele on the 14th August, 1891.
It appeared from an affidavit of the defendant's
attorney that an appeal had been duly noted and
the sum of £1 17s. 6d. paid as security for the
costs of the appeal in terms of section 38,
Schedule B., Act 20 of I860.
On the 22nd October, 1891, on an application
being made by the plaintiff? the Magistrate
ordered the defendant to find security in the sum
of £60 for the costs of the appeal, and rehued to
transmit the record until such security had been
found.
The Court ordered the Magistrate to transmit
the record to the Registrar, the question of oosts
to stand over.
REOINA V. STODARD.
GLADSTONE V. GLADSTONE.
Mr. McLachlan for petitioner ; respondent in
default.
This was an action for restitution of conjugal
rights, brought by the wife. The marriage having
been formally proved by Mr. Norman Lacy, of the
Colonial Offioe,
Mrs. Gladstone deposed that she was married to
respondent on April 3, 1884. There were two
children of the marriage, and witness had been
left also with two children by his former wife.
She had been keeping both her children and those
of the former wife. Last year her husband was
in Cape Town, as the result of which she lost a
good situation. She was now at work, and prayed
for the custody of her own two children. She had
no objection to keeping the other children as well.
Her husband was somewhere in Mashenaland she
believed. Ue had sent her no money for a very
long time.
An order for restitution of conjugal rights was
granted, the respondent to return not later than
the last day of February, otherwise a decree of
divorce would be granted.
[Plaintiff '8 Attorneys, Messrs. van Zyl <fc
Buissinne.]
Act 28 of 1883 — Contravention — Conviction
— Evidence — Appeal.
Mr. Sohreiner for the appellant; Mr. Searle for
the Crown.
This was an appeal from a conviction before the
Resident Magistrate of Cape Town on a charge
under the Liquor Licensing Act of 1888. Counsel
stated that appellant had been fined £6 for an
offence of which there was net the slightest evi-
dence. The testimony in the case was very
brief. P.C. 82 deposed, when the case was
before the Magistrate, that on a Sunday evening
he went to the defendant's premises, the Sarsfield
Hotel, and saw defendant remove some bottles
from a table. When he knocked at the door, de-
fendant looked through a curtain and went away.
It was Fome time before he was admitted. When
he entered everything was cleared away, exoept a
bottle of beer in front of a man named Black, or
Bruyns. P.C. 48 gave evidence that he went to
the back door, and saw two coloured men en-
deavouring to get away. The man Bruyns de
posed that he was a relative of the defendant, and
called on him on the occasion of the seizure.
Stodard gave him a glass of beer, for which he
paid nothing. Whilst he was there several men
came to the door, but defendant would not admit
them. Counsel submitted that the defendant was
fined upon wholly insufficient evidence.
The Chief Justice said there could be no doubt
that liquor was consumed by a penon other than
the occupier. There was a clear presumption,
therefore, that there had been a sale, but it was
said by the man Bruyns that the liquor
was given, not sold. The Magistrate did
not believe him, and that officer was the best judge
as to whether he was to be believed or not. He
thought that if he had been in the Magistrate's
position he would have arrived at the same con-
clusion. The appeal would be dismissed with oosts.
[Appellant's Attorney, D. Tennant, jun.J
SUPREME COURT.
FRIDAY, DECEMBER 4.
[Before the Chief Justice (Sir J. H. DE
VILLIEBS, K.C.M.G.) and Mr. Justice
BUCHANAK.J
PETITION OF HEN DEI K VAN NIEKEBK.
Mr. Sohreiner moved for an order ratifying cer-
tain agreement as to the disposal of the property
826
bequeathed by the joint will of petitioner and his
predeceased wife, entered into with beneficiaries
under the will.
Mr. Sear I e appeared for Mr. G. A. Home, the
guardian of a minor interested, who offered no
objection.
The order was granted.
GARDNER V. TEAGUE AND GRAY.
Agency — Commission — Tender — Costs.
Plaintiff in person ; Mr. Juta for the defendants.
This was a action on an account stated between
the parties. An arrangement was made by which
plaintiff was to receive certain commission on the
»ale of enoek. He claimed t o have Fold 5,000
snoek, earning £20 19s. 8d. as commission, whereas
defendants stated that the plaintiff bad sold a
Fmaller quantity, and was only entitled to £11
12s. 10d. The other item in dispute was as to
whether plaintiff had reoeived an item of £52 16s.,
or, as he contended, only £45 10e>. The actual
amount in dispute was £16 12s. lOd. The
defendants claimed an account, supported by
vouchers, from the plaintiff.
Plaintiff deposed that in February last he had a
conversation with Teague <fc Gray, who asked
him to take over an agency of theirs. In the end
a verbal arrangement was arrived at whereby
witness was to pay them £50 for the agency, and to
receive Id. on each snoek he sold, and 5 per cent,
commission on smaller fish. He paid £25 down,
and subsequently paid the other half. Teague
suggested that he should purchase Giay's share,
but Gray refused to sell it ; whereupon witness
offered to buy Teague's share for £75, but the
sale did not take place, Teague asking for £100.
The defendants had represented to him that the
catch was 10,000 snoek per month during the
season, but it had not been nearly so much.
Witness owed defendant nothing, having paid
over to them all the money he ever received on
their account. He had kept no books regarding
the transactions ; they were not necessary. The
fishery was near Gape Point, and it had been pro-
posed to sell it to a syndicate for flotation into a
publio company.
By Mr. Juta : He had no receipts showing the
payments he had made to Teague <fe Gray. lie
kept books for his produoe business, but not for
the fish agenoy.
Charles Gray, one of the defendants, stated that
an arrangement was made during March by which
plaintiff was to pay £100 to the firm, and receive 5
per cent, on small fish and a penny each per large
snoek. Plaintiff was to render a statement each
month. In April there was a disagreement, as
the result of which the firm refused to consign
further supplies to Gardner. Plaintiff had only
paid £50 of the £100 due in respect of his agency,
a cheque for £15, drawn by Gardner, having been
dishonoured. He at no time agreed to pay Gard-
ner commission on the fish sold during April.
Cross-examined : It was not true that witness
and his partner were unable to meet their
liabilities when the agency was arranged. He
could not swear that he had not said the amount of
snoek reached 10,000 per month, but the whole of
the fisheries on the local coast had been a failure
during the past season, and Teague and Gray had
suffered severely with others.
Thomas Teague, the second defendant, cor-
roborated the evidence of his partner, and stated
that plaintiff was wrong when he said that all he
had to pay was £60. He agreed to pay £100, and
actually paid £60. In April plaintiff was unable
to pay the balance of the £100, and said he would
be compelled to retire from the agency but in
May, when Gardner said he was earning no money,
Gray allowed him commission on that month, out
of kindness. Witness had repeatedly applied to
plaintiff for an account, but had never succeeded
in getting one.
Cross-examined : Plaintiff had never offered to
refer the case to arbitration. The firm had no
desire to keep any money belonging to plaintiff,
but did not know the true position of affairs,
owing to plaintiffs failure to render an account
The Chief Justice, in giving judgment, said thst
in regard to commission the plaintiff bad admitted
that during the luonth of April the arrangement
was suspended, but he had charged commission not-
withstanding. In regard to the £45 10s. the defend-
ants stated that that was all they received, and they
supported the statements by books and receipts,
whilst the plaintiff, despite his fiduciary capacity,
had produced no books, receipts, or accounts. The
onus was upon him to prove that he had paid moie
than £45, and under the circumstances the tender of
£37 12s. lid. was quite sufficient. The plaintiff had
only himself to thank for his position. Judgment
would be for the plaintiff for £37 12s. lid., with
costs up to the date of tender, but plaintiff must
pay all the costs from date of tender.
[Defendants* Attorneys, Messrs. Reid 6 Nep-
hew]
ALING V. BKLLEVUE SYNDICATE.
Company in liquidation — Shares — Calls —
Locus standi of liquidators appointed at a
meeting of shareholders called for the
transaction of general business — Ex-
ception — Appeal .
Mr. Schreiner for the appellant (defendant in
the Court below) ; Mr. Juta for the respondents.
This was an appeal from a decision of the Resi-
dent Magistrate of Worcester, in a case brought
327
by the liquidators of the Bellevue-Zoutpansberg
Prospecting Syndicate against appellant for the
recovery of £8, being the amount of three calls en
a share in the syndicate.
It appeared from the evidence taken before the
Magistrate that a meeting of the shareholders of
the syndicate had been advertised to be held for
the transaction of general business ; but nothing
was said in the advertisement relative to placing
the syndicate in liquidation At the meeting,
however, liquidation was resolved upon and
liquidators appointed.
The defendants* attorney exeepted :
1st. To the plaintiff's right and power to sue
inasmuch as the meeting of shareholders referred
to in the summons did not in law or by the alleged
basis of constitution of the alleged syndicate
poaaesa the power to resolve upon liquidation and
elect liquidators, and ;
2nd. That the usual formalities were not
observed in calling up the several instalments as
they became due by shareholders.
The Magistrate overruled the exceptions and
gave judgment for the plaintiffs with costs. From
this judgment the defendant (now appellant)
appealed.
Mr. Schreiner : The plaintiffs had no locus standi
as the meeting at which they were appointed, had
no power to resolve upon liquidation and eleot
liquidators. No right exists by common law in a
majority of partners at any time to compel a
minority to assent to liquidation.
Mr. Juta was heard for the respondents.
The Chief Justice gave judgment. In doing so
his lordship said that the exception taken in the
Court below was of a purely technical nature, and
he confessed he would have been glad if he could,
consistently with the law, have dismissed it and
upheld the Magistrate's view, but it appeared to
be too clear and plain, that under the contract to
which the defendant became a party when he took
over the share, the only persons appointed to
manage the concern were the directors, and that
therefore, if anyone were entitled to sue under the
contract, it was the directors. It was possible, also,
that an argument might be raked that the secretary
and treasurer might have been entitled to sue
under the contract, but that had not been done.
The plaintiffs were certain liquidators appointed at
a meeting of shareholders convened for general
business, and not to consider the question of
liquidation ; bnt even if the notice bad been to
the effect that liquidation would be considered at
the meeting, he would not have been satisfied that
any liquidator would have the power to sue.
There was no provision in the trust deed
authorising a majority of the shareholders to
appoint liquidators with power to sue share-
holders for their calls. But it now appeared that
there was not even a majority of shareholders
2u
present at the meeting. Under those circum-
stances it was dear that the exception was a good
one, and the judgment of the Court below would
be reversed, with costs in this Court and in the
Court below.
[Appellant's Attorneys, C. C. Silberbauer ;
Respondents' Attorneys, Messrs. Fairbridge 6
Arderne.]
SUPREME COURT.
MONDAY, DECEMBER 7.
[Before Sir J. H. DE Villi ERA, K.C.M.G. (Chief
Justice), Mr. Justice SMITH, and Mr. Justice
Buchanan.]
resid v. abadeb.
Account — Action for — Commission on sales —
Tender — Costs.
Mr. Schreiner and Mr. Molteno for the plaintiff ;
Mr. Searle and Mr. Joubert fer the defendant.
Plaintiff, in this case, a Persian by birth and
a priest of the Malay community, olaiming to be a
lineal descendant of the Prophet Mahomet, came
to South Africa some years ago in the exer-
cise of his priestly functions.
Finding the emoluments of a priest insufficient
for his requirements he commenced a speculative
business. He did not trade personally, but ad-
vanced money and goods to other persons for the
purpose of trading, partly to plaintiff's profit.
Amongst others to whoa he so advanced money
was the Hadje Magomat Abader, with whom
he was on terms of intimate friendship. It
appeared that about the end of 1889 and
the beginning of 1890 plaintiff was in Cape Town,
and then placed in the hands of defendant certain
moneys to be used in a speculative manner on
joint account, the business to be carried on being
the making and disposal of carts. Plaintiff also
placed in the hands of defendant certain accounts
for collection, and supplied him with certain goods
for sale. In January, 1890, a document in Arabic
was drawn up in deftDdant'* b< oks, indicating t! e
position of affairs between plaintiff and defendant,
and the b< oks weie then Fealtd up in the presence
of witnesses. Plaintiff iAso held a receipt signed
by defendant, in which he acknowledged that
plaintiff had given him certain money " to make
money with." Plaintiff failing to get a statement
of account from defendant on several occasions
offered te submit the matter to arbitration, but
328
defendant always refused to take that course,
when plaintiff decided to take the case to the
Court. Plaintiff claimed £229 15s., the final
amount in dispute, and also a detailed account
ef the transactions in question.
Plaintiff deposed that he was educated at
Bagdad, and had been about three years and a
half in South Africa. He had aoted as a priest
at different towns, making up his income by ttading.
He knew defendant well, having stayed some
time at his house. When he first came to Cape
Town he brought £150, and placed it out with
defendant wherewith to trade. He wrote a docu-
ment in Arabic, a copy of which was posted in
defendant's book in his presence, and at the same
time a receipt was signed stating that he
(defendant) owed witness £274 2s. The receipt
set forth the exact business relations between
defendant and plaintiff. In 1889 Abdol Hadie
and witness eatered into a partnership, witness
contributing £100 and Hadie a similar sum.
When he wrote the receipt showing the business
relations of defendant and himself the £100 paid
to Hadie was not inclnded. When witness went
away from Cape Town Hadie was in the Trans-
yaal, and had not returned witness his £100, and
witness asked defendant to act as his agent for the
collection of the money, but the matter had no
connection with the receipt of £274 2s. Abader
did not collect the money from Hadie, nor did he
return the papers until repeated applications had
been made for them. Witness was recently
married, and the ceremony took place from
defendant's house, but latterly there had been
some differences between them on account of a
religious dispute, in which they took opposite
sides.
Cross-examined : Since January, 1890, he had
put his seal to all writings he gave to the people,
and if defendant put in any receipts not sealed
they were not binding. There might be some
receipts he could not recognise ; some of his
writing he knew, and some he did not. It was
true that in Natal he was hard up, but he did not
ask Abader for the money he had lent him for the
reason that he expected to be in Cape Town him-
self Boon after. He had never borrowed money
from Hadji Magmoet. He appointed Abader his
agent for the purpose of collecting certain moneys,
but did not agree to the payment of a 5 per cent,
commission for collecting. Defendant did not
lend him money to give to Mustapha, witness's wife's
father. He gave Mustapha £20, £10 at the
mosque, in presence of the priest, and £10 at his
home, but it was all his own money, not borrowed
from defendant.
Adam Gool Mahomet, an Indian merchant,
■aid he had known plaintiff ever since he came to
the Colony. He had seen in a book of Abader's
a statement of the account between plaintiff and
defendant, but that book had not yet been pro-
duced in court. Defendant on one occasion
premised to bring his book for plaintiff to
examine, but he had not dene so.
Cross-examined : He could not say if plaintiff was
short of money when these transactions took place.
Joseph Gool, another Oriental trader, said that
on one occasion Abader produced a document pur-
porting to be signed by plaintiff. Plaintiff imme-
diately said that the signature was not his, and
witness thereupon closely examined the document
It was freshly written with blue-black ink, and
bad evidently not been written many hours,
although, if the document were genuine, it had
been written many months.
Cross-examined : Abader admitted that the
document was not genuine, and he promised to
bring the real paper next day.
Abdol Kariem deposed that about a couple of
months ago he met defendent on the Parade, when
he said that if witness would try and settle the
dispute without going te Court, he would be glad.
He promised to do what he could, and was present
when defendant produced the document, the
genuineness of which plaintiff at once denied.
Cross-examined : On the day when the plaintiff
denied that the document was genuine, defendant
promised to produce his books the next day. On
that occasion defendant admitted that plaintiff had
made an entry in his (defendant's) book.
Mahomet Abrahams said he was also present
when the document was presented. Plaintiff at
once denied the signature. Witness's own opinion
was that the document was not genuine.
The defendant, Hadji Mahomet Abader, said
his first business with plaintiff was done in January,
1890. Plaintiff asked witness to be his agent for
the collection of his accounts. Witaees said he
would charge 6 per cent., and plaintiff taid that
wouli do. Plaintiff gave him a certain paper,
which he signed in witness's presence. That wai
the list plaintiff now denied signing. Eventually
he also agreed to sell goods on plaintiff's account
at a similar commission, the profit on the
transactions had been something over £36. He
found very great difficulty in selling the goods con-
signed by plaintiff, and finally they were sold by
public auction.
The evidence was very voluminous as to the
details of the account.
329
SUPREME COURT.
TUESDAY, DECEMBER 8.
[Before the Chief Justice (Sir J. H. DE VlL-
LIBR8, K.C.M.G.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
VAN RENEN'S TRUSTEE V. ABEL.
Insolvency — Ordinance 6 of 1843, section 84
— Act 38 of 1884, section 8 — Contem-
plation of sequestration — Undue pre-
ference — Transaction in the ordinary
course of business— Collusion — Forfeiture.
Mr. Schreiner and Mr. Graham for plaintiff ;
Mr. Searle and Mr. Molteno for defendant.
This was an action instituted by the trustee in
the insolvent estate of Willem Carl ran Kenen
against Mr. Richard C. Abel. The CBtate was
placed under sequestration on May 14, 1891. It
appeared that in November, 1890, a promissory
note for £180 was held by defendant as creditor of
the insolvent, his two brothers, and one Lieden-
mann. The three brothers Van Renen had sinoe
all become insolvent. In November, 1890, £26
was paid off the note, and then an arrangement
was alleged to have been entered into by whioh
five mules, a wagon, and a cart were taken over by
defendant from Van Renen. They were held
some days by defendant, and then returned te Van
Renen and his brothers, who continued to use
them at their farm near Hopefield. The insolvent
thereafter remained in possession of the property.
Subsequently two of the mules were sold, and Van
Renen was alleged to have thereafter been oompelled
by defendant to substitute four mules for the two
that were sold. There remained in the possession
of the insolvent one mule and the wagon and the
cart, which he kept till he was on the verge of in-
solvency. Just before the surrender in April it
was alleged that Abel took away the property.
In September, 1890, Van Renen had prepared his
schedules, but they were afterwards withdrawn,
though there was never a moment from that time
until insolvency when the insolvent did not con-
template surrendering his estate. The plaintiff
claimed that the transaction was null and void,
and merely collusive and fictitious, and that the
true intention of the transaction was an endeavour
te give security and undue preference. Plaintiff
claimed a forfeiture of the articles under the
Insolvent Ordinance.
The defendant pleaded that £26 cash was paid
on account of the note, and that during 1890
certain mules and carts were purchased from the
three brothers, in connection with the payment of
the balance of the amount due on the note.
Defendant admitted that about September, 1890,
the insolvent contemplated the surrender of his
estate, but that thereafter satisfactory arrange-
ments with his creditors were made, and that
he was then solvent. The brothers agreed to hire
back the property at 4s. 6d. per day, and did so.
Defendant further pleaded that the transaction
was perfectly bona Jide and open, known to the
other creditors, and free of collusion or undue
preference.
The insolvent, W. C. van Renen, deposed that in
September, 1890, he consulted a Mr. Stigling with
regard to drawing up witness's schedules for the
surrender of his estate. Defendant knew of the
intention to surrender, and was present at the
disoussion at Stigling's office. He did not know
if at that time his brothers intended the surrender
of their estates. He and two brothers farmed on
a farm belonging to a Mr. Fick, situated near
Hopefield. Witness also rode transport as well as
carrying en farming business. In connection with
the transport -riding there was a claim of £72 by
one Steyn, for oxen, and Steyn was pressing for
payment. Eventually Steyn took back the oxen
oy arrangement with witness. At that time
witness could not have paid his creditors. From
the time of this transaction to the date of the
sequestration witness could never have paid his
creditors. He owed a good many debts, and his
assets comprised merely the stock on the farm, the
implements, and the crops. The rent was £60
per year, and he was responsible for his share.
Defendant held a note whioh came due on
November 28, 1890, for whioh witness was
liable with others. Neither he nor his brothers
were able to pay the note. He remembered
that defendant came to the farm several
times when the note was about falling due
About that time he met the defendant at Stig-
ling's office, in the presence of Stigling, one
Gallagher, and witness's two brothers. When
defendant demanded the money witness said he
could not pay anything beyond the £26, whioh
had been paid off before that time. Eventually
witness agreed te give five mules, a wagon, and a
cart as security for A be I'd debt, Abel remarking
that when they had handed the property over
they could have the use of it again. The pro-
perty was handed over, and a receipt signed by
witness and his brothers, but no money at all
passed, and Abel never returned the promissory
note. Abel then said that in a couple of months
they could pay the debt and have the cattle again.
Witness confessed that afterwards he sold two of
the mules to pay a debt contracted at the bank.
He did that although he knew that the mules were
pledged to Abel. He was very sorry for having
seld them. When defendant got to know of the
330
transaction he was angry and said he could do
witness a great deal of barm. Defendant com-
pelled witness to deliver four other males in place
of the two which had been sold. In April, when
the schedules were in preparation, defendant took
away the cart and wagon. Daring the whole time
that elapsed from the commencement of the
transaction with Abel witness never had any other
intention than to surrender his estate.
Cross-examined by Mr. Searle: Among other
creditors pressing him during the period covered
by the transaction with Abe. 1 were the Western
Province Bank, Steyn, and one Schroder. He did
not know for what precise amount. In fact he did
not dearly know what his position was till Sep-
tember, when schedules were prepared, but after-
wards these were canoelled on an amicable
arrangement with Steyn being come to. It might
be true that a Mr. Samuel Abel was a creditor
for two promissory notes ; he did not remember
it. He thought that all the credit he received
from Mr. S. Abel was for 2s. Now that he
recollected, he admitted that Samuel Abel lent
him money on bills to help him to carry en. The
money passed early in 1890. Part of that money,
£99 odd, went to pay another creditor. When
defendant's bill was falling due the crops were
nearly ready, bnt they were not very good. He
could not say what the crops were worth ; perhaps
about £300, taking them at a liberal valuation.
He knew something about the farm, but was not
always working on it. He helped to harvest the
crops. He believed that on December 1, 1890, he
was insolvent, but he confessed that he did not
know what he owed at that time. He was sure
he could not have paid all his debts, but con-
fessed he did not know what either debts or
assets were. He did not tell Stigling at that
time that he was solvent. He did not remem-
ber borrowing money from Stigling at that time.
He was not aware that one of his brothers got
back the promissory note passed to Abel When
he sold the twe mules he did not know he
had no right to sell them, and he gave four back
because he was afraid, Abel having said he would
put witness en the Breakwater. In April, 1891,
Abel took away the rest of the mules and the
wagon and the cart. In January and February,
1891, he knew he was insolvent. Mrs. Fick at that
time sold him some mules and a wagon for £110,
but the sale was provisional, and the property was
given back when he could not pay. He did not
know that on December 1, 1890, the cart was
actually at defendant's house.
Ke-examined : After September, 1890, he in-
curred no large fresh debts. When he desired to
surrender his estate, at the meeting at Stigling's
pffioe, Stigling said that he could not prepare
sehedules and then withdraw them and present
(hem again, otherwise he would get into trouble.
The Chief Justice asked witness if he intended
to surrender all along, why he didn't do so.
Witness said he oould only reply that he was
confused and afraid, and did not know what to do.
By the Chief Justice : He made the sale to
defendant in December. 1896. He could only say
that the reason why he pledged the things to Abel
was because Stigling advised him. He knew that
the effect would be to give Abel a preference over
other creditors.
Johannes Petrus van Ren en, another of the
brothers, stated that he had heard his brother's
evidence, and corroborated it. He was now in-
solvent, and oould not have met his debts at the
time of this transaction with Abel.
Mr. F. F. Werdmuller, who prepared the
schedules and acted as trustee, deposed that inde-
pendently of goods recovered from creditors the
actual assets in the estate were only worth £11.
The total liabilities pioved were about £410, but
there were many other claims not yet proved.
The crops were reaped before insolvency. About
twenty bags only were obtained.
Thomas Gallagher, Court messenger at Hope-
field, gave evidence regarding a conversation
which took place in his presenoe, in the course of
which it was agreed that the Van Renens were to
hand the mules and the cart and wagon to Abel as
security for his debt. A pretended sale was to be
gone through, but no money passed, and Abel
afterwards said that the brothers oould have the
cattle back, but must appear to go through the
process of hiring them. Abel told him that he
knew the Van Renens were in a bad position, and
that he meant to have the first pull. At the time
of this transaction the Van Renens could not have
paid half-a-orown in the £.
By Mr. Searle : He made an examination into
the Van Renens' position, and considered that
they were insolvent at the end of last year.
He considered that the crops were worth £400 or
£500. Before the Van Renens signed the docu-
ments offered by Abel, their nature was explained
to them. Willem van Renen never told witness,
after September, 1890, that he was solvent. Is
November, 1890, witness stood security for Willem
van Renen for £37 10s. He did that because the
insolvent promised witness a horse, saddle, and
bridle. He got what he was promised.
He could not help admitting that although he
supposed he would get into trouble for it now that
matters were in court. He only took this action
because Willem van Renen told him that some of
his creditors would take 10s. in the £, and witness
thought if that were done the Van Renens
would pull up. He did not pay the £87 10s. ; but
he kept the horse. In witness's opinion the
transaction with Abel was not open, but secret.
The secret consisted in Abel's saying that he did
not want the mules, but the money.
331
Corroborative evidence for tbe plaintiff having
been given by Mr. and Mrs. Fiok, Mr. Steyn, and
Mr. 8. Abel,
The defendant, Richard Cornelia Abel, deposed
that he was a dealer in cattle ; farming stock and
implements. In Angmst, 1889, he sold some cattle
to the Van Renens, and got their promissory note
for £130 10s. At that time the Van Renens were
solvent. He was aware that in September, 1890,
Willem van Renen prepared his schedules on
aoooont of the pressure of Steyn, but when the
latter took back his cattle witness took the
brothers to be perfectly solvent. The promissory
note was not paid on the dne date ; afterwards he
saw the brothers and asked for the money.
The Chief Justice said that with regard to the
point of collusion, he had come to the conclusion
that it would be difficult to hold that collusion
took place. The real point to which counsel
should address themselves was as to the intention
of the insolvent — whether he contemplated in-
solvency all along as the plaintiff contended.
Witness, continuing, said that at the time of
the transaction Willem van Renen was a fully
solvent man. The crops were splendid, and it was
believed that when the harvest was garnered the
brothers would be quite clear. Witness estimated
that the crops then promised to yield 900 muids of
oats, 600 muids of wheat, 260 of rye, and over 100
of barley. The value would be between £600 and
£700. Witness thrashed for them in January,
wnen the greater part of the corn had been taken
away, and ho got over 200 muids of good, fat corn,
whilst the brothers had sold large quantities to
Stigling, one Aokermann, and a miller at Hope-
field, and others. He heard Willem van Renen
say in September, 1890, that he was fully solvent,
and could pay his creditors five times over. He
got the hire money for the cattle and carts
regularly, and there were receipts in existence
showing that.
By Mr. Sohreiner.: It was true that he wished
to secure himself, but Gallagher had misreported
the conversation that took place between witness
and him. All the credit that Willem van Renen
obtained from witness in November and
December, 1890, was £6 8s., but if Van Renen
had asked for mere witness would have given it.
Witness did not say to Fiok that of course he was
first, as the landlord, but that witness desired to
oome next.
Mr. J. W. Stigling, agent, deposed that when
he drew the schedule of liabilities on
the first occasion, in September, 1890, the
deficiency^ of Willem van Renen was very email
indeed, and when the Hteyns withdrew their olaim
and took their oxen back, Van Renen became
solvent. Witness's belief in the solvency of the Van
Renens was best shown by the circumstance, that
after December 1, 1890, ho lent them nearly £60.
By the Chief Justice : Witness was the agent of
Stephan Bros., and made the advance on account
of the expected harvest, as was his custom. He
got grain in payment of the money.
By Mr. Sohreiner: He had heard Gallagher's
evidence as to what took place on December 1, and
he contradicted it. He advanced the £60 odd in
September, November, and December; £10 was
paid in the latter month.
By Mr. Searle: There was not the smallest
secrecy about the transaction of Deoember 1.
Mr. Frank Hughes, another agent practising at
Hopefield, stated that when he asked Willem van
Renen how he was going to pay defendant, be
replied that the crops were excellent, and that the
brothers could pay their liabilities five times over.
Robert van Renen, one of the three Van Renens
who gave the promissory note, deposed that in
November, 1890, he and his brothers were not able
to pay their creditors, but when the Steyns with-
drew their claim, all was right. The transaction
of December 1, 1890, was suggested by Willem
van Renen. After that the document of hire was
drawn up. Abel took the mules and carte back in
April last.
By Mr. Sohreiner : He admitted having told
Werdmuller that no money had been paid on
account of the hiring agreement, and that the
document was a sham. When he went to Werd-
muller, in January or February of the present
year, he then told Werdmuller that he and his
brothers had been practically insolvent for nine
months. He and Willem agreed to say, when the
wagon was sent to Abel, that it was only going to
be repaired if Fick asked why the wagon was
being moved.
By Mr. Searle : Mr. S. Abel had promised to
lend him six mules to work with. When he was at
Werdmuller's, early this year, and said he had been
insolvent nine months past, he was frightened,
Fick having threatened to send witness to priton.
Gustav Willem Liedemann, one of the joint
signatories of the note, C. J. Louw, J. M. Slaabe,
and G. Kleinsmit also gave evidence.
SUPRE ME COURT,
WEDNESDAY, DECEMBER 0.
[Before the Chief Justice (Sir J. H. DE VlLLlEBS,
K.C.M.G.), Mr. Justice Smith, and Mr.
Justice Buchanan.]
VAN RXNEN'S TRUSTEE V. ABEL.
Mr. Sohreiner and Mr. Graham appeared for the
plaintiff, and the Aoting Attorney-General (Mr.
Searle) and Mr. Molteno fer the defendant.
332
The bearing of this ease was resumed.
Mr. Searle contended that there was not the
slightest proof that defendant was intended to
have been preferred, whilst with regard to the
contemplation of insolvency the evidence of the
insolvent was highly unsatisfactory and incon-
clusive.
The Chief Justice, in giving judgment, said that
the questions to be determined in the case were,
first, whether on December 1, 1890, when the first
document was signed, there was a contemplation of
sequestration on the part of the insolvent. The
next question was whether he had at that time, by
the particular transaction now impeached, in-
tended to prefer the defendant ; and the third
question was whether the transaction was in the
ordinary course of business. As to the first, the
Act of 1884 said that in case the insolvent's assets
were less than his liabilities, or the transaction
impeached took place within six months before
insolvency, then the presumption should be taken
as in favour of in solvency ; a presumption, how-
ever, which might be rebutted. In the present
case they might take it that there was a contem-
plation of sequestration on December 1. That
contemplation had not been rebutted in any way
by the evidence ; on the contrary, the evidenoe
showed that there must have been a contempla-
tion, inasmuch as a few months before
the insolvent had actually sent in his
schedules, and was only relieved from insol-
vency by giving up the very oattle in
respect of which he was being sued by the then
creditor, bceyn. In his opinion the insolvent's
assets were really less than his liabilities then and
afterwards. The next question was, did he intend
to prefer the defendant above his other creditors ?
If once it were established that sequestration had
been contemplated, then it almost followed as a
matter of course that any particular transaction
by which any creditor got a preference was
intended to have that effect by the insolvent. Of
course there might be cases in which there was the
general intention of sequestration without any
particular wish to prefer any one creditor, but in
the present case, in addition to all the facts going
to show that there must have been an intention to
prefer, they had insolvent's own statement that that
was his object, and that in case sequestration took
place, defendant should have a preference. That
was what insolvent's admission came to, and that
being supported by evidenoe, ought to be taken as
conclusive. He did not say that the mere
fact that the insolvent said he intended to prefer
was conclusive, but the Court had also the
other facts in the case to the same effect. Then
the defendant said the transaction was
in the ordinary way of business. Well, he con-
fessed that to his mind it appeared to have
been quite out of the ordinary oourse of business.
There was the promissory note ; when it fell due
only £25 had been paid on it ; there was no
renewal, and then this secret arrangement was
made quite out of the ordinary course of business.
When once the contemplation of sequestration had
been shown it was for the creditor who made the
transaction impeached te show that it was in the
ordinary way of trade. It was not enengh to say
that in the village such transactions were common,
or that between themselves there had been such
dealings before ; the creditor must show that his
action had been such as would be taken by com-
mercial men of repute, and in the present ease,
although the transaction was not so fraudulent as
to amount to collusion, it was yet a secret arrange-
ment, and an arrangement which the Court could
not in any way sanction. As to the point of
collusion, he did not think it necessarily followed
that defendant knew the full state of the
insolvent's affairs ; the insolvent must have known,
but that did not show that the defendant had full
knowledge or acted in a collusive manner. The
judgment of the Court would be for the plaintiff
in terms of the prayers A and B of the declaration,
but the amount not to exceed £67 10s.; the
defendant was to return the five mules, the wagon,
and the cart, but there would be no decree as to
forfeiture. Costs for the plaintiff.
[Plaintiff's Attorney, C. C. de Villiers, ; Defen-
dant's Attorneys, Messrs. Fairbridge & Arderne.]
QUIN'8 BXECUTOR V. QCTN.
Executor — Failure of duty — Actiou to frame
accounts — Damages — Costs de bonis
propriis.
Mir T. Upington and Mr. Juta for the plaintiff
Mr. Bohreiner and Mr. Webber for the defendant
This was an action brought by Mr. Wm. Divine
of Fort Beaufort, executor of .the late Mary Ann
Quin (born Divine), against the defendant, W. J.
Quin, executor with the late Mrs. Quin in the
administration of the estate of the late Hon. J.
Quin, of Fort Beaufort, to frame a correct
account, supported by vouchers, of his admini-
stration as managing executor of the estate of the
late Mr. Quin, and to pay into the estate of the
late Mrs. Quin, his mother, the amount to which
her estate was entitled under the provisions of the
will of her deceased husband ; or, in the altern-
ative, that the defendant pay to the plaintiff the
sum of £3,649 4s. 9d., for the benefit of the estate
of the said late Mrs. Qnin.
The will of the late Hon. John Quin provided
that the executors (his widow and eldest son), as
| soon as convenient after the death of the testator,
but not later than two months, should make a
full and true inventory of the effect* and goods,
333
movable and immovable property in the estate,
the same to be fairly valued and appraised. After
framing the inventory and paying debts, the ex-
ecutors were to frame an account and equally
divide the balance, one half-share to go to the
widow and the other to eertain legatees. (The
present case was conoerned with the widow's half-
share.) The will went on to state that the estate
was not to be sacrificed, but worked for the
common good of the widow and the other heirs, on
condition that the executors Bhould pass a bond for
the full amount of the assets. Mr. Quin died on
June b, 1880, and it was alleged that thereafter,
as soon as the will became in force, the widow en-
trusted to the defendant the entire administration
of the estate. It was then alleged that defendant
failed to draw up a full and true inventory and
appraisement, but filed an account, purporting to
be an administration aocount, with the Master in
March, 1882. The account was alleged to have
been filed nominally by both executors, but in
reality by defendant, and it was stated
in the declaration that such account
was insufficient, misleading, and incorrect. The
value of the estate, it was further alleged, was much
larger that the amount set down by the defendant.
Mrs. Quin died on November 30, 1889, having
made a will whereby the plaintiff was appointed
sole executor, who now alleged that the estate had
suffered by reason of the dealing of the defendant,
as acting executor, with the estate of his late father.
In his plea, defendant admitted filing an account
with the Master, as alleged, but said that the
account was true and correct, and approved by his
co-executor. Defendant pleaded that his late
mother took over the estate, and received all the
doc amenta connected with it during her lifetime.
Defendant set forth that during the whole time he
acted with the knowledge and approval of his co-
executor, and in an open and bona-Jide manner.
The Chief Justice said he did not see how, un-
less fraud were alleged, the plaintiff could now
impeach the accounts to which Mrs. Quin was a
party, and which she signed as correct in her
capacity as co-executor.
Sir T. Upington said that was so, but that there
were many suras received by the defendant which
did not figure in the accounts at all.
Mr. Schreiner said he was prepared to meet his
learned friend on that ground.
The evidence of defendant, taken on commission
at Johannesburg, was then read. The testimony,
which was very voluminous, stated among other
things that the property in the estate had been
greatly overvalued. Deponent's father valued the
estate at about £4,500, but a hotel property, set
down as worth £500, only realised £200 when sold.
Deponent's late mother had the estate handed over
to her at her own request, and deponent had acted
throughout with her approval and consent.
Cross-examined, deponent stated that his late
mother took ever the estate in September, 1881.
No bond was parsed by the executors in accordance
with the will. Deponent yielded to his mother's
wishes in whatever was done. He could not say
who was present when his mother took over the
estate, nor was the arrangement reduced to
writing. Deponent's mother did not leave the
entire management of the estate to him.
The Chief Justice suggested that in view of the
admissions of the defendant in cross-examination
counsel for the defendant should agree to judg-
ment being given for the amount of his property
iu the Colony.
Mr. Schreiner was afraid he could not do that in
the absence of instructions from his client to that
effect unless judgment for the value of the pro-
perty attached should have the effect of res
judicata as between the parties.
The Chief Justice : What is the value of the
property attached ?
Sir T. Upington : Possibly not £100 altogether.
The Chief Justice : What are the circumstances
of the defendant ?
Mr. Schreiner : Very depressed indeed, my lord
If the Court would say that the surrender of the
Colonial assets would settle the matter then I
shall advise Mr. Quin to accept the offer, but it
must be understood that Mr. Quin is not to be
sued further by the executor.
Mr. Wm. Divine the plaintiff, Mayor of Fort
Beaufort, gave evidence that with regard to
certain books defendant said he had left at Fort
Beaufort they were not now there, he having
taken them with him to Johannesburg. Defendan
took away the safe and the title deeds of the
property with him. At the time of Mr. Quin's
death the Fort Beaufort Advocate was oarried on
at a profit.
Cross-examined : During her lifetime Mrs.
Quin frequently complained to witness that her
son had not properly carried out his duties as
executor. Landed property in Fort Beaufort had
depreciated somewhat, but only since the opening-
up of the Gold-fields.
After argument,
The Chief Justice gave judgment. In doing so
his lordship said that the case was one in which
every presumption ought to be made against the
defendant, who had clearly failed to do his duty as
an executor in accounting for the several large
sums of money received by him on behalf of the
estate. He was quite satisfied that if a full
account were prepared it would be found that over
£1,000 was due to the plaintiff from the defen-
dant in his capacity as executor of his late
mother. What that amount actually was it would
be difficult to say without going into a more
careful scrutiny of the accounts than the Court
pould possibly make then, In view of the decision
334
of the plaintiff and his advisers, however, the
Court would give judgment for the plaintiff for
£1,000, with co*ts de bonis propriis.
Their lordships concurred.
[Plaintiff's Attorneys, Messrs. Fairbridge &
Arderne ; Defendant's Attorney, Gas Troll ip.]
SUPREME COURT.
THURSDAY. DECEMBER 10.
f Before the Chief Justice (Sir J. H. DE Villierb
K.C.M.G.), Mr. Justice SMITH, and Mr
Justice Buchanan.]
PROVISIONAL ROLL.
LEWIS AND GO. V. SCHMIDT.
Mr. Tredgeld moved for provisional judgment
on a eheque for £11 10s., less £5 paid on account.
The Chief Justice asked if the cheque had been
fully presented for payment at the bank.
Mr. Tredgold said no, but that the cheque had
been referred to drawer. There had been no
formal presentation.
The Chief Justice ordered the case to stand
over.
BEARLE AND CO. V. STANDEE.
Mr. Molteno appeared for the plaintiff, and
moved for provisional sentence for the sums of
£13 18s.6d. and£l 17s. 5d.
Mr. Juta appeared for the defendant, and asked
for a postponement, but
The Court intimated that the case had better be
proceeded with.
Mr. Juta remarked that the property in dispute
had ceased to belong to the defendant, having been
sold to one Anderson.
Mr. Molteno read affidavits to the effect that the
sale was underhand, and made for the purpose of
defeating the rights of the plaintiff. Counsel
stated that Anderson's debt was only £19, whereas
plaintiff was willing to give £76 for the property
alleged to have been conveyed to Anderson in
satisfaction of his claim.
The Chief Justice : When did the alleged sale
take place?
Mr. Molteno: On October 15, a day after de-
mand waB made.
The Court granted provisional sentence and a
rule nt«t, returnable on the 12th January, calling
upon Anderson to show cause why the property
alleged to have been sold to him should not be
declared executable.
LIQUIDATORS WITKOP SYNDICATE V. KLEIN-
SCHMIDT.
Mr. Watermeyer moved for provisional judg-
ment on unsatisfied debt for £80 3s. 9d., less £32
2s. 3d., with interest.
Provisional judgment was granted.
DARTER BROS. AND WALTON V. D. M. BRB8LER.
Mr. McLaohlan moved for provisional judgment
on an unsatisfied debt of £18 8s. 7d.
Provisional judgment granted.
REHABILITATIONS.
On motion from the Bar, the rehabilitation
of the following insolvents was granted :
Jacobus Stephanus Gericke, H.son, Jacobus
Johannes Pretorius, jun., David Wilhelmus Eeter-
huyzen, Petrus Johannes Janse van Rensburg,
Henry Cooper, Jan Lodewyk van Antwerp, and
Christian Albertus Laubser.
GENERAL MOTIONS.
IN RE THE PAARL BANK.
Sir T. Upington moved for the sanction of the
Court to the compromise proposed to be effected
by the official liquidators with one of their body,
'Mr. Jacob Isaac de Villiers. ' Counsel stated that
the special repart had lain for inspection at the
bank as well as the Master's Office.
Mr. Justice Smith : Is there any committee of
hareholdero?
Sir T. Upington could not say.
The order was granted.
IN RE THE CAPE CENTRAL RAILWAYS.
Mr. Sohreiner moved for an order in tents of
the second report of the official liquidator.
Counsel said that the report had been duly pub-
lished. On a previous oooasion the Court sanc-
tioned the new oon tract entered into in England,
and there now only remained some minor matters
to settle. It was suggested that the certificate
of the liquidator in England with regard to the
holders of debentures should be accepted in the
Cape Coleny as official, to obviate any duplicating.
It was asked that the time for receipt of clwinis
should be fixed, and also the remuneration of the
official liquidator. The figures for the year showed
a surplus of £6,240 earnings over working
expenses, and counsel suggested the payment of
£600 to Sir T. Scanlen, the official liquidator, for
his year's services,
335
The Court graated an order in terms of the
report, and fixed February 29, 1892, at the latest
date for the receipt of claims. Sir T. Soanlen's
remuneration was ordered to be £600 for his work
up to July 81, 1891.
BEBID Y. ABADEB.
The hearing of this case was resumed. Mr.
Sohreiner said Mr. Molteno appeared for the
plaintiff, and Mr. Searle and Mr. Joubert for the
defendant.
The defendant continued his testimony, and
explained the various items of aoeount between
himself and the plaintiff, whem he denied owing
the amount claimed.
By Mr. Sohreiner : He was not perfectly
acquainted with the affairs of plaintiff. Whenever
he collected money for plaintiff he sent it on to
Natal the same day. It was quite untrue that
plaintiff at any time made an entry in any of
witness's books. It was true that when plaintiff
was shown the document in dispute he said it was
a forgery, and that the signature was not his.
Witness had never said that he was a creditor of
the plaintiff, instead of being a debtor.
Amina Abader, wife of the defendant, Hadje
Magmoet, Sayed Abou Bakar, J. D. Leibbrandt,
Gafildien, Samsodien Saban, Kadiga, Abdol Japie,
Mustapha, and Hadje Handjah Aohmat proceeded
to give evidence for the defence as to several of
the items of the account between plaintiff and
defendant.
SUPREME COURT.
JTRIDAY. DECEMBER 11.
[Before the Chief Justice (Sir J. H. DE VlL-
LIEBS, K.C.M.G.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
BBSID Y. ABADBB.
Mr. Sohreiner and Mr. Molteno represented the
plaintiff, and Mr. Searle and Mr. Joubert the
defendant.
The evidence having been conoluded, Mr.
Schreiner proceeded to address the Court and
oontended that the whole affair was a conspiracy
to remove the plaintiff from the Malay priesthood
and that the Hadje Magmoet was at the back of
it. The plaintiff was a priest of the highest class,
whose influence was far-reaching, and there could
be no doubt that Magmoet desired to oust him
from his position, and compel him to leave the
local community.
2x
The Chief Justice said that that was a very
easy method of putting it, but where was the
evidence to sustain such an accusation ?
Mr. Sohreiner said that the demeanour of the
Hadje in the box went far to prove the justice of
the contention. The whole case, he believed, was
the outcome of a religions dispute.
Without calling on Mr. Searle,
The Chief Justice gave judgment. His lordship
said that the plaintiff must stand or fall upon the
question; of whether or not the three sums of £26,
£60 and £45 were lent by him to the defendant.
If he failed upon those items all the other items
claimed by him must fall to the ground. The plain-
tiff must prove that he had lent the money, not by
relying upon the weak points of the defendant's
case, but upon the strength of his own. All the
observations made by counsel for the plaintiff had
gone to show that there were weak points in the
defendant' 8 case, which was undoubtedly the fact,
but counsel had wholly failed to remove the weak
points of the plaintiff's own case. The Court was
not satisfied that when the plaintiff came into the
Colony he possessed all the money he said he' had,
or that in January, 1890, he wis in such
circumstances that he could advanoe to the
defendant the money he said he had advanoed.
The Court was satisfied from Hadje Magmoet's
evidence that in January, 1890, the plaintiff asked
Magmoet for £50, and that the plaintiff would not
have done so had he himself been able to lend
money to the defendant. One of the weak points
of the plaintiff's case was that whereas it was
necessary for him to prove that he paid £71 in
full to one Gafildien ; as a fact, Gafildien had
proved that such never was the case. Another
weak point in bis oase was as to the £100. It
was clear that plaintiff was unwilling to leave for
Natal unless he first obtained some document as
to the position between himself and defendant.
The authority to recover the £100 was given to
defendant before January 10, 1890, and if that
were so, it was an extraordinary circumstance that
the item should have been omitted from the
receipt for £274. It was not, it was true, a
promissory note, but the fact that it had been
handed over to defendant for collection would
have been a strong reason for its inclusion in
the formal receipt. Then there was another
extraordinary circumstance. The plaintiff
was certainly pressed for money, and
letters were continually sent to the
defendant, asking him to recover the money to be
collected, but nothing whatever was said about
profits on the £180 alleged to have been lent by
plaintiff to defendant. A great deal had been said
about the evidence given by the Imaum Hadje
Magmoet. He confessed that his manner of giving
evidence did net much impress the Court ; there
was a pomposity and a sense of his own imnor-
836
fence whioh did not speak maoh in favour of a
witness, and the man's pride at the fact that he
had no need to work, and did not work, was, in-
stead of being oreditable to him, ai he seemed to
imagine, to his discredit. Still, with all these in-
firmities, he did not think that the manner in
which he gave his evidence would justify the
Court in thinking that he came there prepared to
perjure himself, and the very faot that he admitted
telling a polite fib, to escape lending money to a
friend, spoke rather in his favour. That witness
swore that he was present when the interview took
place between plaintiff and defendant, and
he produced memoranda whioh had the
appearanoe of being true. He was
corroborated by Abou Bakar, who claimed
to be another descendant of the Prophet
The Court had to judge between these parties,
and he was of opinion that the judgment should be
fer the defendant with costs. As to the carts, it
appeared from the correspondence that if they
had not been left with the defendant as
security for costs, he would have applied
for and obtained such security. The
formal judgment would be for the plaintiff
for the amount of tender, £81 8s. 2d., with costs
to that date, but plaintiff to pay all ooets subse-
quent to the date of tender.
Their lordships concurred.
f Plaintiff's Attorneys, Messrs. van Zyl &
Buissinne ; Defendant's Attorney, B. M. Brink.]
GENERAL MOTIONS.
PETITION OP CARL HERMAN KOHNB.
Mr. Castens moved for authority to raise a
loan on mortgage of certain three lots of ground,
situated on the Wynberg Flats, in order that
petitioner, a minor duly assisted, may be enabled
to pay the purchase price of the said ground, whioh
he has bought from his father.
The Court ordered the application to stand
over for information regarding the father's finan-
cial position.
PETITION OF THE CAPE OP OOOD HOPE
SAVINQ8 BANK.
Mr. Schreiner moved for revival of the judg-
ment of August 14, 1884, obtained by petitioners
against Stephanos Botma en a mortgage bond,
and for authority to the Sheriff, who duly attached
the property, to proceed with the sale in execu-
tion.
?bf order was granted.
PETITION OF PETRONELLA C. PRINCE.
Mr. Jones moved for a rule nisi calling upon
petitioner's husband to show cause why she should
not be admitted to sue him tn forma pauperis in
an action for judicial separation, custody of the
children, and an allowance for maintenance.
The order was granted, the rule to be return-
able en the last day of term.
PETITION OF ROBERT J. ZBEMAN.
Mr. Juta moved for an order authorising the
Master to take steps towards the appointment
of a new trustee to the insolvent estate of Charles
Martell, who is now unrepresented, for the purpore
of transferring to petitioner certain piece of
ground in Buitenkant-street, Cape Town, which is
still registered in the insolvent's name.
The order was granted, in so far as the appoint-
ment of a new trustee was concerned.
TAYLOR AND STMONS V. 8CHUNKE.
Arbitration — Award — Failure to comply
with terms — Contempt of Court — Applic-
ation for personal attachment.
Mr. Searle moved for an order for personal
attachment of the respondent for contempt of this
court in respect of his failure to carry out the
terms of an award of the arbitrators in tbe dispute
between the parties, which award was made a rale
of Court. Counsel stated that the award called
upon the respondent to surrender certain farms in
the Transkei, which he had failed to do.
Mr. Schreiner appeared for the respondent, and
read the affidavit of Mr. Schunke to the effect
that he had spent some thousands of pounds on
behalf of the applicants, for which he had never
been reimbursed. The dispute had arisen in con-
nection with the St. John's River Railway pro-
ject, and deponent had agreed to withdraw nil
claim rather than prejudice the undertaking.
Arbitration was afterwards resorted to, but the
applicants had raised certain difficulties, as the
result of whioh he had been unable to carry eut the
terms of the award, though he had every desire
to do so. There was no desire to contemn the
order of the Court. Transfer of beveral farmi
had not been made because respondent was not in
a position to pay the purchase price and under
these circumstances it was impossible for him to
comply with the terms of the award
The Chief Justice : Could not the respondent
give a full power of attorney to the applicants,
authorising them to do everything he can do?
Mr. Schreiner : I don't think there would be the
slightest objection to that course on our part*
387
Mr. Justice Smith : Why should he not oede his
rights as security only ?
Mr. Schreiner said that if his client were in
court he should recommend the adoption of that
course.
The Chief Justice ordered the case to stand
over, and asked counsel to endeavour to come to
an arrangement. The Court, he said, was not
folly satisfied that respondent had done all that
he could to carry out the rule of Court.
The case accordingly stood over.
PETITION OP BRIDGETT MCEWAN.
Mr. Webber moved for authority to the Master
to pay out to petitioner the sum of money
awarded to her husband out of the estate of
petitioner's father and mother, but paid into the
Guardians' Fund on account of his disappearance
from the Colony, he having deserted and left
destitute his wife and family several years ago.
A rule nisi was granted, returnable on January
12, one publication in the Gazette.
IN THE ESTATE OF THE LATE PETBU8 J. HUGO.
Mr. Schreiner moved for the sanction of the
Court to the division of the property in the estate
as recommended by the curator. — Mr. Syfret
appointed to represent the minor interested
therein.
The order was granted.
OEDULD V. GEDVLD.
Mr. Tredgold moved to make absolute the rule
nut admitting applicant to sue her husband in
forma pauperis in an action for divoroe by reason
of his adultery.
The rule was made absolute, Mr. Tredgold to
set as counsel.
HCGBEOOB'S TBU8TEB8 V. SILBEBBAUEB.
Insolvency — Sale of shares — Transfer — Non-
registration—Rights of vendee — Harris v.
Buissinne's Trustees (2 Menz., 105) dis-
cussed.
Per De Villiers, C J.— The Court had more
than once intimated that although it con-
sidered itself bound by that decision, (Harris
v. Buissinue's Trustees) it would do nothing
to extend the principles laid down in that
case to other cases unless the Court felt
itself compelled by principles of law to do
so.
Mr. Schreiner for the plaintiffs ; Mr. Searle for
the defendant.
This was a special case, stated for the opinion of
the Court, between Mr. George W. 8tey tier and
Mr. Harry Gibson, in their capacity as trustees of
the insolvent estate of J. G. McGregor, and Mr. J.
C. Silberbauer.
Plaintiffs, when appointed trustees in the estate,
discovered that there were registered in the name
of the insolvent fifteen shares in the Colonial
Mutual insurance and Trust Company, and 10
shares in the Colonial Fire Insurance Company.
These, it appeared, the defendant bought through
Messrs. Bolus Bros., brokers, on August 15, 1890,
by broker's note, on the ordinary terms of cash
against scrip. The price was duly paid by defen-
dant, and the scrip delivered to him on August
18. The insolvent wrote to the companies, de-
siring them to transfer the shares to Mr. Silber-
bauer, but as a fact no transfer of the shares was
made in the books of either company, although
the scrip was in order. The question to be deter-
mined was as to whether the shares were an asset
in the insolvent's estate, er were the property of
the defendant.
The Chief Justice said that registration of im-
movables stood in the place of delivery of
movables, and seeing that the insolvent had also de-
livered to defendant all his rights in the scrip and
duly endorsed the latter, it was difficult to see
what more he could do.
Mr. Schreiner remarked that the trust deeds of
these companies stated that in all oases of transfer
of shares the directors had first to approve of the
transferee, which had not been done, in the pre-
sent instance. Counsel proceeded to argue that
the shares had not been fully delivered to the
defendant, and were still assets in the estate of
the insolvent, and as suoh were available for
liquidation by the trustees.
Counsel referred to the following authorities :
Voet, 41, 1 ; Sande, De Alienatione, Van Leeuwen's
Commentaries ; Ordinance 18 of 1846 ; Carlis v.
Otdfield y 4, H C, 879 ; Preston and Dixon v. Biden's
Trustee, Buoh., A.C., 822; Harris v. Buissinne's
Trustees, 2 Mens., 106 ; Morkel v. Holm, 2 Juta,
57 ; Wright v. The Colonial Government. 1 O.T.L.R-
216. ^
Without calling on counsel for the defendant,
The Chief Justice gave judgment. The conten-
tion on behalf of the plaintiff, his lordship said
amounted to this, that the principle laid down in
the case of "Harris and Buiatinne^s Trustefes"
ought to be extended to the case of a sale of
shares, where the insolvency of the vendor had
taken place before registration of the shares in the
name of the purchaser. The Court had more
than once intimated that, although it considered
itself bound by that decision, it would do nothing
to extend the principles laid down there to
338
other oases, unlet! the Court felt itself com-
pelled by principles of law to do so. The question
to be determined in the present case was whether,
in the ease of a sale of shares when the vendor had
dene everything that lay in his power to give
transfer of the shares, upon his insolvency the pur-
chaser was to take no right as against the trustee.
In the oase of a sale of immovable property, there
was a dear prinoiple enunciated in the oase of
" Harris and Buiatinne"s Trustees," and that was
that registration of immovables stood in the place
ef delivery of movables, and inasmuch as in the
oase of movables there was no transfer of the
ownership to the porohaser until there had been
delivery, therefore in the oase of immovables there
was no transfer of the dominium in the property
until there had been a registration. In the of case
a right of action, however, the Court had more
than once intimated that when onoe the cedent,
the vendor, had done all in his power to effect a
oession of the right of action, the cession was
oompleted. It was only in the recent oase of
** Wright and the Colonial Government" that
the point was fully considered. The principle
there laid down, if applied to the present oase,
ought to be conclusive, and he did not think that
the mere fact that the company in whioh the
shares were held required, by its trust deed, that
there should be oonsent to the registration could
really affect the present case. No doubt something
had still to be done before the assignment was
completed, but that was only a provision as
between the company and the shareholder, and did
not affect the questions either of title or of con-
veyance. So far as the vendor was concerned, he
had done ail he oould to void his title and convey-
ance, and the rule of law was that incorporeal
property was ceded and conveyed by virtue of the
oontract by whioh the vendor had undertaken to do
everything in his power to divest himself of his right
of action, and where he had done all in his power
to that end. He was of opinion that the contention
of the plaintiffs oould not be sustained, and that
judgment must be for the defendant with costs.
Their lordships concurred.
[Plaintiffs* Attorneys, Messrs. Fairbridge £
Ardern* ; Defendant's Attorneys, Messrs. Reid A
Nephew.]
SUPREME COURT.
MONDAY, DECEMBER 14.
[Before the Chief Justice (Sir J.
VlLLIEBfl, K.C.M.G.) and Mr.
Buchanan.]
H. DB
JnstioB
In re THE APPLICATION OF DANIEL JO HAN II E8
THEUNI8SEN.
Mr. Graham moved for an order authorizing the
Master of the Bupieme Court to amend oextain
letters of administration, bearing date the 26th
March, 1891, by describing the applicant in such
as Theunissen instead of Theunis.
The Court granted the order.
BTBUBEN AND OTHBB8 V. THE CAPE TOWN
DISTRICT WATERWORKS CO., LIMITED.
River — Riparian proprietors — Springs —
Streams— Sources — Diversion of water-
Reservoir — Damnum sine injuria — Inter-
dict — Damages — Chasemore v. Bichardt
(7 H. L. Ca, 349), and Grand Junc&m
Canal Co. v. Shugar (L. R., 6 Ch , App,
483) discussed.
Mr. Schreiner and Mr. Graham appeared for the
plaintiffs, and Sir T. Upington, Q.C., and Mr. Juts
for the defendant company.
This was an action for a perpetual interdict and
for damages. The declaration alleged that the
plaintiffs (Messrs Strnben, Forrest, Teung, Ayres,
Reid, J. C. Wrensoh, and J. F. J. Wrensch) are
the registered owners and proprietors of certain
farms and properties situated upon the banks of the
Liesbeek River, and as riparian proprietors are
entitled to a reasonable share of the water in the
said river, including its springs and sources and
the streams flowing therefrom into the said river.
That the defendant is the registered proprietor
of certain property forming part of the old estatt
known as Rouw Koop or De Heop, situated upon
the left bank of the Liesbeek River, and as such
the defendant is an upper riparian proprietor with
relation to the plaintiffs in respect of the said
river.
Upon the said property of the defendant there
rises a constant spring known as the Albioa
Spring, whioh is, and has at all times been, s
principal spring and source of the said river, upon
whioh a strong and perennial stream was at all
times accustomed to flow into and form portion of
the stream of the said river.
In or near the bed ef the said river, and at »
J
339
point in its course above the place where the
itream from the aforesaid Albion Spring enters
the river, there has at all times been another
constant spring known as the Westerford Spring,
which was at all times another principal spring
and source of the said river, from which a strong
and perennial stream was at all times discharged
immediately into and formed portion of the stream
of the said river.
The defendant in and during the years 1889 and
1890 caused the Albion Spring to be opened up,
made excavations at the eye of the said spring to
considerable depth, and in those years, and the
year 1891, and more especially in and after the
months of February and March, 1891, the defen-
dant did and does cause all or nearly all the water
of the said Westerford Spring to percolate under-
ground to the said Albion Spring, and did and does
cause large quantities of water from the stream
of the said river to percolate through the im-
mediate strata into the said Albion Spring so
opened up and deepened as aforesaid by the de-
fendant's works.
The defendant in and after the months of
February and March, 1891, by means of pumping
apparatus established at the said Albion Spring,
did and does divert the water of the said spring
and the water percolating from the said Wester-
ford Spring, and from the stream of the said river
as aforesaid, and does wrongfully and unlawfully
convey the water aforesaid away from the
said river into a certain reservoir, from
which the said water is not again returned by the
defendant in any wise to the said river, but is
used by the defendant for the purposes ef the
oompany. The plaintiffs jointly prayed for a per-
petual interdict restraining the defendant
(a) From diverting or using more than a reason-
able share of the water of the said river, including
springs and sources thereof and the streams flowing
therefrom into the said river.
(6) From conveying any of the water of the said
river, including the aforesaid springs, sources, and
streams, away from the said river as aforesaid, so
that the same is not returned to the said river
after use upon defendant's riparian property
aforesaid.
(e) From interfering or disturbing the springs
known as the Albion Spring and the Wester-
ford Spring and sources, and from interrupting
or diverting the streams flowing therefrom into
the said river, so as to cause the water of the said
springs, sources and streams to flow otherwise
than it has been accustomed to flow for fifty years
and upwards.
The plaintiffs each severally prayed for £100
damages*
The defendant in his plea admitted that he had
opened up the Albion Spring, and specially pleaded
that
By means of the said opening up excavations
and other works in and about the said spring
arising as aforesaid on his own land, and which he
was entitled to make, he had gained and won from
and on his own land an additional and inoreaatd
supply of water above and beyond the water
which had flowed from the said spring into the
said river after the defendant had used such
quantity thereof as he was legally entitled to use.
The said additional and increased supply so
arising on his own land had never flowed into tho
said river, and the defendant had used and
diverted it for his own purposes, as he was entitled
to do, and that he had never unlawfully diverted
or used the water which flowed from the said
spring into the said river after his lawful use as
aforesaid. Wherefore he prayed that the plain-
tiff's claim might be dismissed with costs.
Upon these pleadings issue was joined.
The Chief Justice, after Mr. Schreiner had
opened the case, asked if the issues were not
purely questions of law, and if the maxim damnum
tine injuria did not apply.
Mr. Schreiner contended that the maxim did not
apply, and proceeded to draw a distinction between
the rights of owners of a private river and those of
the public as owners of a public river. Counsel
referred to the following authorities : " Hough v.
Van der Merwe," Buoh. 1874, p. 148 ; " Acton v.
Blundell," 12 M. A W., 863; "Chasemore v.
Richards," 7 H. L. Ca. 349 ; a Angell on Water-
courses," p. 161.
The Chief Justice referred to the case of " Grand
Junction Canal Company v. Shugar," L.B 6 Ch.,
488, in which it was held that, " although a land-
owner will not in general be restrained from
drawing off the subterranean waters in the
adjoining land, yet he will be restrained if in so
doing he draws off the water flowing in a defined
surface channel through the adjoining land. 11
The Chief Justice : As this case is somewhat in
your favour, Mr. Schrei ner, the Court will hear
the evidence.
Mr. Thos. Stewart, M.I.C.E., F.G.S., said he had
been in the Colony nine years, and assisted Mr
Gamble, late hydraulic engineer of the Colony,
during part of that time. He knew the Liesbeek
and was familiar with its River and springs and
sources. The ostensible rise of the stream was
Kirstenbttoh Spring ; the next important source
was the Newlands Spring. Between the two was
a spring belonging to Newlands House. The
Newlands Spring was divided, one part
being joined by the Commetje, and the surplus
water would find its way down to the river.
The next best souroe was the Westerford
until pumping operations were commenced.
He had prepared a descriptive model of the river
and oertain plans, which he put before the Court.
Below the surplus from the Newlands Spring was
340
the Westerford, which came into the river close to
the abutment of the bridge on the left bank of the
river. The principal eye of the spring was there.
Other water rose in the river at that spot in
addition to the main eye of the spring. The
water soaked up over an area of 680 square feet
besides the main eye. There was no other con-
siderable source between the Westerford and the
Albion. The latter was 600 yards, in a straight
line, from the Westerford. Below the Albion be
knew of no other sources. Previous to the com-
pany's operations the Albion was the chief source.
The surplus from the Newlands Spring went into
the river partly below the Anneberg Brewery
and partly near the Josephine Mills. That was
the only portion of water coming into the river
between the Albion and the Westerford, though
there was formerly another small spring. He had
made a geological survey of the Peninsula,
and found that the original source of the
springs was the rain which fell on Table Moun-
tain ; part of the water fell through fissures till it
reached granite or clay slate, which were imper-
meable, and caused the water to work out towards
the edges. It flowed down to the Liesbeek in
many parts by surface channels, but the great pro-
portion in early summer sunk in under the drfbris
on the slopes and gravitated to the hollows, and the
actual sinking could be seen in the kloofs and
ravines. The water could be seen coming out on
the mountain-side. Once the water went down it
must find its way to the Liesbeek, according to
geological law. The water coming out at the
Westerford and the Albion came from the moun-
tain in some such way as he had described. It
could not be superficially traced, but he bad no
deubt it followed an underground channel. The
Westerford hitherto had had a fairly constant
flow, and was not dry at present. A lowering of
the gradient at the Albion would affect the
water from the Westerford, the water being
drawn from the bed of pervious material which
extended from the Albion to the Westerford.
The lowering the outlet at the Albion increased
the velocity of the flow there, and decreased the
supply from the Westerford at certain seasons of
the year, but in the winter not even the lower
gradient served to draw off the whole of the
Westerford Spring. Below the spongy strata
through which the water passed between the
springs, the strata were comparatively imper-
meable. The superficial bed of the river between
the springs was mostly sand and gravel. The posi-
tion of the wells showed that the strata varied in
water-bearing oapacity, but the lowering had cer-
tainly induced the water to follow. He had never
known the Westerford Spring to be dry before
the company's operations were commenced. He
had gauged the Westerford outside this dispute
altogether. On April 6, 1888, he made sundry
gaugings of the spring at places above and below
the bridge, and found that the flow was then
221,000 gallons per twenty-four hours, and this
was in the dry season before the rainfall. That
represented the difference between gauges above
and below the bridge, and included water rising
from the main eye, and also from the bed of the
river. He took the gaugings for the Rondeboach
Municipality, and they had no reference to this
dispute. He gauged again in May and June, 1889,
also for the Municipality, when there had been a
considerable rainfall — some six or seven inches.
The average was 820,000 to 840,000 gallons per
twenty-four hours, the gauges being taken under
precisely the same conditions as the previous ones.
One gauge gave 872,000 gallons. Since the com-
pany commenced operations he had made various
gauges, and prepared a table indicating the result*.
The Chief Justice: Just put that before the
Court, and don't let us take up any more time than
we can help.
Mr. Justice Smith : Can you tell us, roughly,
what is the flow at the Westerford new ?
Witness : No, my lord ; the gaugings are for
last year. Continuing, witness said he gauged the
Albion in June, 1884, for Mr. Gamble, when the
quantity was 782,000 gallons per twenty-four hours,
that being in the rainy season. No other gaugings
were made till the defendant company's excava-
tions had been carried out. The results of the
gaugings had been tabulated. The outlet of the
Albion was 12| feet lower than the eye of the
Westerford when things were at their normal
state. The work at the Albion which drew the
water from the Westerford was the sinking of the
level ; soil removed at the Albion removed
support from the Westerford, and diminished its
supply.
The Chief Justice : Is the flow from the Albion
and the Westerford together, into the river, more
or less now than formerly ?
Witness : Slightly more at the Albion.
Mr. Justice Smith; Formerly about 1,000,000
gallons ran into the river from both springs. What
is the figure now ?
Witness said that the flow from the Albion
alone was slightly in excess ef the previous
gaugings for the two, but did not include other
water whioh formerly flowed into the river. All
the water at the Albion did not flow into the river;
it was diverted when pumping operations went on,
and he had known the company work for nine
hours and take all the water from the Albion,
stopping the supply to the river entirely.
Mr. Justice Smith : Taking the pumping, what
is the average flow into the river during each
twenty-four hours from the Albien ?
Witness said he had no observations showing
that, beoause he did not know the exact tunes
when the oempany had pumped. Occasionally
341
they pumped nine or ten hours a day, bat the
yield, when the pumps were not going, was about
1,100,000 gallons per twenty-four hours.
The Chief Justice : The point is this : Has the
defendant's work diminished the water in the
river ? And that is the only point upon which he
seems unable to give us information. Has there
or has there not been a diminution of the yield
belew the Albion, since the defendant com-
menced working ?
Witness said he was not in a position to state.
Mr. Justice Buchanan : None of the plaintiffs
are proprietors between the Albion and the
Westerford ?
Mr. Schreiner : No.
The Chief Justice : Then any of the wells which
the company have sunk between the springs, if sunk
deep enough, would have the same effect as the
deepening of the Albion ?
Witness said that would be the case to a limited
extent ; but he had no doubt, speaking as an
•xpert, that the Westerford had suffer* 1 by reason
of the deepening of the Albion.
Cross-examined by Sir T. Upington : His theory
was based on the fact that the sinking at the
Albion had drained the water from tbe Westerford
Spring in tbe dry season, and also drained some
other water which previously found its way to the
river. The drainage area that fed the Liesbeek
included the whole of Table Mountain from Kir-
stenbosch to Forrest's Sluice at Rondebosoh Bridge.
The whole of the water in that area naturally per-
colated into the Liesbeek. He said that because
of the levels and the geological nature of the
country. He meant to tell the Court that if a man
on the slopes made a well he roobed water from
the Liesbeek River. He was prepared to say that
except what was taken up by evaporation and vege-
tation, the rest of the water from the area would
reach the Liesbeek. He could not say there was a
defined channel on the higher part of the area, but
the water fell down in kloofs and channels, and
reached the river in various ways. He looked upon
the superficial river as more or less the channel for
carrying away the water beneath. He could not
give an instance, between Kirstenbosoh and
Forrest's Sluice, where he knew of a defined
channel. In the whole of the area the surface for-
mation was a sponge, but the water gravitated to-
wards the Liesbeek. Part of the water of the
area would go to the Albion, and part to the
Westerford, and the deepening of the Albion drew
away water from the Westerford. That need net
be the case, however, all over the Peninsula ; it
would depend on whether the strata were
impermeable. He thought that the water from
the Westerford passed partly under the
wells and partly over, as the levels showed. Before
he had anything to do with the present case, he
tank a pit near the Westerford Spring, but at no
other spot, and had made no practical examination
below the bed of any well to see if water perco-
lated or not. The Newlands Spring was muoh
higher than the Westerford. From the outlet of
the Newlands Spring to the eye of the Westerford
was about 930 yards, but the country there was
variable, and there were possibly impermeable
strata intervening. That was the only way in
whioh he could account for the Newlands Spring
not being drained ; as a fact, he did not know if it
had been drained or not. He had gauged
the water in the Liesbeek below the Albion
since the company's operations had been
commenced, bnt took no gauging* before the
alterations were made, for the reason that he was
not then employed, fle considered that the
lowering of the Albion had led to tbe decrease of
the supply to the river at that spot, but was not
prepared to say that the volume of water below
the outlet from the Albion had been decreased,
because he took no observations before. Upon
certain days pumping operations bad gone on for
nine hours when no water went into the river.
There were not very many of such days. He had
seen the Westerford Spring dry in April, 1891. He
saw the spring on Sunday, when there was a fair
flow, but smaller than he had known it previously.
Gaugings taken by him in May and June, 1889,
varied from 182,000 gallons on May 17 to 872,000
gallons on June 8. He did not account for that ;
he simply stated it as a fact. He believed that
that was before the company commenced opera-
tions.
Mr. Justioe Smith : Why didn't you gauge it
on Saturday, so that we might know what is the
flow now ?
Witness said he had not been instructed to that
end.
Cross-examination continued: The eye of the
spring was a foot or two from the water in the
river bed. He could make no traceable connection
between the Albien and the Westerferd, but
surrounding circumstances told that there was
Buch a connection.
Re-examined : On one occasion he dug a pit for
the Rondebosoh Municipality, but nothing he did
then affected the permanent flow of the Wester-
ford Spring. There was a 'ravine near the
Newlands Spring, and the formation there was
boulders and day. On the 28th of January last,
the culvert from the Albion to the river was
perfectly dry some hours, showing that the com-
pany's operations had caured all the water from
the spring to be absorbed.
Mr. J. H. Gibbs, engineer, stated that he had
assisted Mr. Stewart in preparing the diagrams of
gaugings, and that they were correct. On many
occasions he had seen the culvert f rum the Albien
to the river perfectly dry, showing that all the
yield of the spring ha4 been absorbed. One date
342
wm 27th February last, and there were fully half
a dozen such occasions. He examined the culvert
every half -hour. He had observed water leaving
the river whilst the pumps were going at the
Albion Spring. He had seen the water of the
river decrease in volume on several occasions, and
had found the reason to be that water from the
river had been absorbed by the eye of the Wetter-
ford Spring. From March to April of the present
year the Westerf ord Spring flowed rarely.
The Chief Justice : Did you take any observa-
tions before the oompany commenced operations ?
Witness : No, my lord.
The Chief Justioe : That is the principal thing
we want to know.
Mr. B. J. Witney, furniture dealer, said he had
known the Westerford Spring thirty-two years,
and had not known it fail until the defendants
oemmenoed operations.
By Sir T. Upington : In old times the Wester-
ford Bridge Spring was of no account, and he did
not believe it was much better to-day. He had
seen the tpring six times within the last month,
and considered the stream as strong as ever it was.
He considered that the oompany had very greatly
improved the Albion Spring ; it was muon
stronger, oleaner, and purer.
By the Chief Justice : Sinoe the defendants
constructed their works he believed that the yield
of water to the river was much greater.
Mr. Frederick J. Coetzee, a retired farmer, who
said he had lived in the Mowbray district sixty
years, gave evidence that in 1830 there were many
old sluices on the river, and that in those days the
Westerford Spring ran well all the year through.
The further hearing of the case was adjourned
tine die.
SUPREME COURT.
TUESDAY, DECEMBER, 15.
[Before Sir J. H. DE VlLLlEBfl, K.C.M.G.
(Chief Justice), Mr. Justioe Smith, and
Mr. Justioe BUCHANAN.]
COLONIAL ORPHAN CHAMBER V. MARNITZ.
Trespass — Action — Damages — Tender —
Costs.
Mr. Sehreiner and Mr. Molteno for the plain-
tiffs ; Sir T. Upington Q.C., and Mr. Searle for
defendant.
This was an action instituted by the Colonial
Orphan Chamber against Mr. Philip Marnitz, of
Uniondale. The plaintiffs claimed damages for
trespass on a oertain property belonging to them,
as the registered owners of a oertain portion of the
farm Rietvlei, in Uniondale, of which the de-
fendant was owner of the remaining extent. The
properties had a common boundary, and the
plaintiffs claimed £200 for an alleged
trespass on their land. A lule niti was
granted by the Ceurt in connection with
the case in Maroh last, pending a settlement
of the question, whioh was really one of title.
The damage caused to plaintiffs, counsel stated,
was no doubt considerable, but the question of
damages would hinge upon that of title. Te the
declaration defendant pleaded a denial of the
trespass, and also that, as the registered owner of
portion of the farm Rietvlei, he was fully entitled
to use the land in dispute on the date of the
alleged trespass. He denied that the plaintiffs
had sustained damage, and in reconvention claimed
that in 1889 and 1890 plaintiffs trespassed on his
land, for whioh he claimed £300 damages.
Defendant further claimed that he was the true
owner of a oertain marsh or vlei, situated on the
said farm, and described in the title deed as com-
mon to both portions of the farm. Defendant
also claimed a perpetual interdict and a declaration
of rights as to the ownership of the marsh. Practi-
cally the dispute was as to the ownership of the
marsh. Plaintiffs admitted a nominal trespass on
defendant's land, and offered £80 as oompensatioiL
Mr. D. F. Morkei, Government surveyor, gave
evidence as to the situation of the marsh, and
stated that defendant appeared to have ploughed
up the land and sown it with beans. According to
the diagram of the plaintiffs, the marsh was in-
cluded in their property.
Mr. Lucas Maree, who said he had lived in the
Uniondale district fifty-four years, deposed that
he knew the farm Rietvlei before the village was
laid out in 1855. He remembered the marsh long
before 1846, when Zondagh and Dannhauser ob-
tained title of portion of the farm From that
time onwards the people on the north side of the
river occupied the marsh right up to its edge, and
no other persons ploughed or used it. So far ss
he knew, Zondagh and Dannhauser olaimed the
marsh from the time they obtained title from Ds
Jaager. The portion they did not work them-
selves they let out on tribute. Two years' work-
ing of the land defendant held would not be to
valuable as one year's of the land he was alleged
to have trespassed on. The defendant's land
whioh plaintiffs were alleged to have trespassed on
was not very fruitful.
By Sir T. Upington : His homestead was nine
miles from the plaoe in dispute, but he was fre-
quently on the snot,
34S
By the Court : He did not know if Zondagh and
Dannhauser occupied the marsh by arrangement
with other landed proprietors interested.
Mr. J. Wemeyer, formerly member for George,
stated that he was interested in the laying out of
the village of Uniondale. He acted for a Mr.
Van Rooi in a dispite which arose between him
and Zondagh and Dannhatlser, in 1854, for an
alleged impounding of Van Roofs oattle. He
advised the latter to bring an action, but when he
had examined Zondagh and Dannhattser's title to
the marsh, recommended his client not to prosecute
his action. Van Rooi then gave up claim to the
marsh, which was cultivated by Zondagh and
Dannhatlser continuously. In Dannhatlser's time
the boundary was a ditch, and cattle which went
beyond that were impounded.
Mr. Cornelius Maree, a farmer living in the
Uniondale district since 1872, deposed that at the
time he knew it the marsh was only used and
cultivated by Zondagh and' Dannhatlser, prede-
cessors of plaintiffs.
The Registrar of Deeds stated that in the Deeds
Office a document of transfer, which simply stated
with regard to a marsh running between two
properties that the marsh was common to both,
would not be passed.
By the Court : He had never had such a case
as this to deal with, but he considered that if a
marsh was to be conveyed as such it would require
separate transfer and diagram.
Mr. Henry Stewart gave evidence that his
brother was once ownor of the farm Rietvlei.
Zondagh and Dannhauser talways used the marsh
m their own.
Mr. B. Stewart, lessee of a part of the farm from
the Orphan Chamber, said that the occupation by
defendant of the land in dispute had caused
damage to the extent of fully £100 as regarded the
first crops alone, whilst there had been no chance
•f sowing second crops owing to the trespass.
For the defence.
Mr. Philip Marnitz, the defendant, testified that
he first oooupied the marsh in January last. He
asserted his right to the land, including one-half
of the vlei, in which he believed he had a common
right. The land for trespassing upon which
plaintiffs offered him £80 was very valuable land,
and the money offered did not represent the loss he
had sustained.
Mr. Schreiner having addressed the Court for
the plaintiffs,
The Chief Justice, without calling on counsel
for the defendant, gave judgment. It was very
satisfactory, he said, to hear from the Registrar
sf Deeds that transfer would not at present be
sllowed in the form in which it had been allowed
in the present case, but in point ef fact the transfer
had been effected, and the Court must, with the
materials at its disposal, attempt to give a true
2y
definition and meaning to that transfer. Let
them first of all take the case as it would have
been between the former transferor, De Jaager,
and the transferee, Oelofse. If the case had arisen
between those persons there would have been no
doubt that the transferee would have been entitled
to the land up to the middle of the marsh. As to
the marsh itself, it was not by any means of such a
vague and undefined nature as was oontended for
on behalf of the plaintiffs, because, looking to the
original diagram, it was marked down as a clear
and specific place. On the original diagram the
Klein River and the Riet River were marked
down both as flowing into a marsh called the
Valentine Marsh. V pon the diagram attached to
the transfer the same features appeared, and a
compilation put in showed that there was also a
marsh in the Klein River, and that that wide river
was really not a river at all, but a marsh ; but
that was only a compilation, for which there was
no authority in the original grant, or in the dia-
gram attached to the transfer to Oelofse. Now,
the words of the conveyance were : •* bounded
north and east by the marsh or valley
B C D B P G." If it had stopped there, possibly
there might have been some doubt, but in view of
the fact that the marsh was really in
point of fact a portion of the river and
a continuation of the Klein and the
Riet Rivers, he thought little difficulty would
have arisen then, because the original rule
of construction might have applied, that where a
river was a boundary it meant up to the middle of
the river. Of course it was said that there they
had to do with a marsh, but he had already shown
that the so-called marsh was really an intervening
space between the Riet and Klein Rivers on one
side, and the Kannasse River on the other. But
then the conveyance went on as if to remove all
doubt as to the boundary, " which is common to
the proprietors of both portions of Rietvlei.'*
The effect of that was to make it appear almost
as if the marsh was a common wall to the two
properties, though he confessed that the word
" common " used there was rather a misnomer.
Then it went on : *' Separating the two portions of
Rietvlei." If, as that pointed out, the marsh
separated the two then it could only be a middle
line, which could fairly be considered as
the boundary between the two portions. He
had no doubt that would have been the
construction which any court of law would
have given if a case had arisen between
De Jaager, as transferor, and Oelofse as trans-
feree. Now they came to the rights of the plain-
tiff, who was the successor of the transferror, and
those of the defendant, the successor of the
transferee. The transferor could not code greater
rights to the plaintiff's predecessor than he had
himself. If he had already conveyed land up to
344
the middle of the marsh on the one aide, be conld
only oonvey np to the middle on the other vide.
There was oertainly the strong argument raised
by Mr. Sohreiner that it was unfair towards a
transferee if he had not got a diagram which
dearly showed his boundary, but still the fact that
a mistake bad been made in a diagram could not
affect the justioe of the case. The original trans-
feree had got his rights to the middle of this
marsh, and oould not be deprived of those rights,
and the present case had to be decided between
the successors of the transferor and the trans-
feree. If the defendant now had the
share which Oelofse had then, in his
opinion, according to the well-known rule
of construction, his rights extended to a line
drawn through the middle of the marsh. It was
uot a case in which there was a conflict between
the body of a transfer deed and the diagram,
because the latter made it clear that the land was
to be common, and there was the important
circumstance whioh made it almost conclusive
that a memo, was attached, stating that the extent
of common marsh was limited by the line A B.
He was of opinion, in order to give the true con-
struction and meaning to the transfer, that the
Court was bound to hold that the intention of the
parties was to transfer the land to a line drawn
through the middle of the marsh. It was dear,
therefore, that there had been no trespass on the
part of the defendant. The plaintiffs admitted
trespassing on a portion of land which undoubtedly
belonged to defendant, and tendered £30 for the
trespass, but the defendant in hit counter-claim
asked the Court to make a declaration of rights
which he for his part was not prepared to make at
all. Upon the claim in convention the plaintiffs
muit fail, and there would be absolution from the
instance with costs. Upon the claim in recon-
vention there would be judgment for the plaintiff
(defendant in the claim in convention) tor £30,
also with costs.
Their lordships concurred.
[Plaintiff's Attorneys, Messrs. Tredgold, Mc-
Intyre & Bisset; Defendants' Attorneys, Messrs.
Soanlen 6 Syfret.]
SUPREME COURT.
WEDNESDAY, DECEMBER 16.
[Before the Chief Justioe (Sir J. U. DE
VILLIER8, K.C.M.G.), Mr. Justice SMITH
and Mr. Justice Buchanan.]
OHLSSON'S CAPS BREWERIES, LIMITED V.
WHITEHEAD.
Trespass — Private road — Damages — Inter-
dict.
Sir T. Upington, Q.C., and Mr. Juta appeared
for the plaintiff company, and Mr. Sohreiner and
Mr. Shoil for the defendant.
This was an action for £100 damages for trespass
and for a perpetual interdict.
The declaration alleged that the defendant was
the registered owner of lots 4, 7, 8, 11, and 12 of the
sub-divided estate Palmboom, in Newlands, which
lots were sold in 1851. By the diagram attached
to defendant's title lot f*o. 4 is bounded to the
north by lot No. 3 of the said sub-divided estate,
to the south by ta cross-road, to the east by lot
No. 7, and to the west by a cross-road. That the
plaintiff company was the registered owner of lots
1, 2, and 8 of the said sub-divided estate, also sold
in 1861, and was also the registered owner of cer-
tain property known as the Newlands Brewery,
situated to the west of lots 1 and 8, by which it
is bounded.
That the said cross-road bounding the defend-
ant's lot 4 on the west was, and ia, a road up to a
spot where the said lot No. 4 is bounded by lot
No. 8, and where the lot No. 8 is bounded by the
said brewery property, and i* of a oertain width.
That the defendant claimed that the said road
should continue of the same width, and beyond
the said spot, for the entire length of the said lots
1 and 8, and that he was entitled to use the land
of that width and length as a road, and that the
plaintiff company denied the said claim of the
defendant.
That the plaintiff company in or about the
month ef November, 1891, erected a fence along
the boundary of the said Newlands Brewery
property and across the piece of lsnd claimed as
aforesaid by the defendant as a road, but of which
the plaintiff company was the registered owner-
and that the defendant, by himself, his servants,
and agents, in the said month, violently, wrong,
fully, and unlawfully trespassed upon the said
piece of land belonging to the plaintiff as aforesaid
and broke down and removed the said fence, by
345
reason whereof the plaintiff company Buffered
damage to the extent ef £100. The plaintiff com-
pany claimed :
(a) £100 as damages.
(6) A declaration that the defendant was not
entitled to come upon the said piece of land of the
width and length aforesaid, or to use it as a road.
(c) A perpetual interdict restraining the de-
fendant from trespassing upon the Baid piece of
land.
(d) General relief.
In the alternative the plaintiff company olaimed
that they and their predecessors in title had unin-
terruptedly, and as of right, used and occupied the
said piece of land, of the width and length afore-
said, for a period longer than the period of pre-
scription, and from the year 1851.
The defendant in his plea admitted that he
broke down and removed the fence referred to in
the declaration, in consequenoe, as he alleged, of
the plaintiffs having wrongfully and unlawfully
erected the said fenoe in violation of defendants'
right to use the said road, which was wrongfully
and unlawfully obstructed by the said fenoe. He
further specially pleaded that the road obstructed
was not owned by the plaintiff oompany as pro-
prietors of either lots 1, 2, and 8, or of the
Newlands Brewery property, and that he (the
defendant) was entitled to the use of the said mad
by virtue of the conditions of his tenure of lots
4, 7, 8, 11, and 12, shown upon the original plan
framed on the 10th January, 1851, which shows
the roads referred to in the declaration as roads
common to the lots there Bold and disposed of.
Wherefore defendant prayed that plaintiffs' claim
should be dismissed with costs.
Upon these pleadings issue was joined.
Mr. A. Ohlsson, M.L.A., managing director of
the plaintiff company, said he knew the place in
dispute very well, and there was not the faintest in-
dication of a road there. The place was covered with
trees, and in the winter was so marshy that it was
impassable. Defendant had never olaimed a right
of road, but on one occasion he came on to the land
whereupon witness Bent his brewer to tell defend-
ant that if he did so again he would be prosecuted
for trespass. If defendant obtained the use of the
land in dispute he would gain nothing in distance,
nor conld he get out anywhere.
By Mr. Schreiner : He purchased the Anneberg
property ten years ago, but knew it before then.
He claimed that his title deed gave him the right
to this land, and if that contention failed he
said it was his by prescription. He had already
enclosed the land on one occasion, but the
fenoe had probably been Dulled down. People
occasionally pulled down his fences even now,
but he only desired to enclose property whioh was
his. He distinctly said that for ten years the
land in dispute had not been used as a footpath
or road. Whenever he had seen anyone en the
land he turned him back. He admitted that so
far as Dean-street was concerned defendant would
gain if the land in dispute were opened up as a
road. He had placed boards up warning tres-
passers off the land, but did not know that
defendant had pulled them down.
Re-examined : There was not the slightest indi-
cation of communication between defendant's
house and Dean-street.
By the Court : Before witness came into posses-
sion the alleged road was occupied as part of the
Anneberg property, and he claimed it bv virtue
of the ownership of Anneberg.
Mr. J. G. Neser, vendor of the property now
owned by defendant, gave evidence that he knew
the alleged road claimed by defendant, and
although he had lived in the district since 1844 he
never saw a road at that spot. He never used the
land as a road when he held the property. Two
sluits ran across it, and the place would be useless
for the purposes of a road.
By Mr. Schreiner : He had never seen carts go
along the alleged road. The owner who preceded
plaintiffs several times set up a spar at the spot,
but it was always removed.
By the Court : In Cloete's time, before the
plaintiffs came into possession, witness regarded
the land as a piece of road never used, but Gloete
on several occasions stopped him from going that
way, and said there was no road there,
Mr. D. Ireland, miller, said that in 1868 he
entered into possession of the land where the
Anneberg Brewery was afterwards built. Up to
1878 he cultivated a garden where the alleged road
was. In his time there was no footpath along the
alleged road.
By Mr. Schreiner : During witness's occupation
defendant was in his employ. People might have
passed over the land occasionally in his time, but
to no great extent.
Mr. T. Willey, timber merohant, gave evidence
that in 1860 he ocoupied the property now owned
by defendant, and never knew the alleged road to
be used as a road.
By Mr. Schreiner : He only lived there three
years.
Charles Cloete, son of the coachman to the late
Mr. R. Gloete, said he had lived forty-five years
at Newlands, and had never known the land in
dispute to be used as a road.
Mr. R. Walton, engineer, deposed that he was
supervising the construction of a fenoe on behalf
of the company, when defendant and his sons
interfered, and refused to allow the work to go on.
Mr. J. J. Bisset, Government surveyor, deposed
that he had examined the land in dispute, upon
which there was no defined footpath.
By Mr. Schreiner : There was an irregular
track, but nothing like a footpatt),
346
For the defence,
Mr. R. B. Whitehead, the defendant, testified
that there were three houses on his property, all
occupied. If the land in dispute were dosed up,
it would be to the great detriment of his property.
He had always used the land as a footpath,
without hindranoe on anyone's part. Whenever
an attempt was made to close the road he broke
down the fence, and he had also removed a board
put up by Mr. Ohlsson warning off trespassers
from the road. During the whole time Ireland
was on the land people used the road largely, and
the track was dearly defined.
Cross-examined : He used the road in dispute to
get to Rondebosch and Mowbray. His short-cut
took him clese to the brewery wall. In regard to
the alleged road, it was practically a case of every
one making his own footpath. There was one
distinct footpath, and several tracks.
By the Chief Justice : He claimed the road as a
public road, not as a servitude by his property on
the plaintiffs' property. He considered that if
plaintiffs were allowed to enclose the land his
property would suffer to the extent of quite £200.
He was fighting the case because he felt that an
attempt was being made by a rich man to obtain
an advantage over a poor one.
The Chief Justice : It is no question of rich
against poor. If the road is yours you will get it.
Mr. C. S. Powrie, ex-Mayor of Claremont, stated
that he had seen an irregular path along the
course of the alleged road, running in and out
among the trees.
Mr. A. Manson, a former member of the Clare-
mont Municipality, said he had used the footpath
from a boy.
Similar evidence was given by Mr. George
Whitehead, a son of defendant ; Mr. T. Dreyer,
who was formerly employed at Cloete's Brewery ;
Mr. Philip J. Soott, undertaker, of Newlands ; and
Doate Kannemeyer, labourer.
The further hearing was adjourned sine die.
SUPREME COURT.
THURSDAY, DECEMBER 17.
[Before Sir J. H.DE VlLLIERS, K.C.M.G. (Chief
Justice), Mr. Justice SMITH, and Mr
Justice Buchanan.]
PROVISIONAL ROLL.
UNION BANK V. UY8.
Mr. Schreiner moved for final adj udication of
the defendant's estate, the provisional order having
been granted en December 7.
The order was granted.
REHABILITATION.
The Court granted the rehabilitation of Caaper
Jacobus Albertus van Zyl.
GENERAL MOTIONS.
IN THE INSOLVENT EST AT H OF THE LATE
JOHN WOLSTENHOLHE.
Mr. Shiel moved, on the petition of Mr. S.
van Niekerk, trustee of the said estate,
for the acceptance of his resignation of the
office on the grounds of his intended departure
from the Colony, and that an asset of doubtful
value only remained to be realised.
The Chief Justice : What are the remaining
assets?
Mr. Shiel : A farm and some unimportant erven,
to which there appears to be no title, my lord.
The Court granted a inle nut calling upon
all persons concerned to show cause why the
application should not be granted, the rule return-
able on January 12, and to be made absolute in
the absence of valid objection ; one publication
in the Gazette.
PETITION OF MYRA HABVEY.
Mr. Castens moved for a rule nisi requiring peti-
tioner's husband to show cause why she should
not be admitted to sue him in forma pauperis in
an action for divorce by reason of his adultery.
The rule was granted, and made returnable on
January 12.
PETITION OF AMY THOMAS.
Mr. McLachlan moved for leave to sue is
forma pauperis by ediotal citation, in an action for
divorce against petitioner's husband, a gunner in
the Royal Artillery, now stationed in England.
The rule was granted, and made returnable on
the last day of next term ; personal service to be
effected.
VAN RBNEN'S TRUSTEES V. VERSFELD AND
OTHEBS.
Mr. Schreiner moved for the issue of a com-
mission to take the evidence, on behalf of the
defendants, of Mrs. Rivers, a witness residing it
Brighton, England.
Mr. Searla appeared for the plaintiffs in the
case, and oonsented to the application.
The order was granted).
347
PETITION OP LOUIS A. VINTCENT.
Mr. Schreiner moved for leave of absence, on
the ground of petitioner's state of health being
such that he will be unable to continue to attend
to bis duties, as one of the official liquidators of
the Cape of Good Hope Bank ; suoh leave of
absence to be for four months from December 80,
1S92.
The order was granted.
PETITION OF WILHELMINA g. M. ODENDAAL*
Hr. Watermeyer moved for leave to sue in forma
pauperis in an action for divorce against peti-
tioner's husband by reason of his adultery.
The matter was referred to counsel for his
certificate.
PETITION OF JOHANNES J. OEYEB.
Mr. Webber moved for authority to raise a
loan to satisfy the balance of purchase price and
expenses arising from the investment, in landed
property, of certain trust funds in the petitioner's
hands by virtue of the ante-nuptial contract of
Pieter A. Welkin and Aletta P. Geyer.
The Chief Justice asked why the Court should
interfere at all if the trustee had the power to act
under the contract.
The application was ordered to stand over for
further inquiry.
PETITION OF ELTAS MARK.
Mr. Juta moved for leave to sue in forma
pauperis in an action against Salomon Koskie for
restoration of ceitain gold and silver articles
deposited with him by way of pledge.
The matter was referred to counsel for his
certificate.
PETITION OF MA BY A. L. TADMAN.
Mr. Schreiner moved for leave to sue by ediotal
citation in an action against petitioner's husband,
Chas. A. Tadman, who left petitioner in 1884, and
is believed to be resident in England. Counsel
stated that the application arose out of the recent
case of M Hatch v. Hatch." The petitioner had
now heard from Tadman's sister that he had been
seen in London, but there was no evidence as to
his precise whereabouts. Tadmau appeared to be
in not very flourishing circumstances, and prob-
ably did not wish his address to be known.
The order was granted, personal service if pos-
sible, failing which one publication in the Daily
Telegraph ; the rule to be returnable on the last
day ef next term,
PETITION OF MABGABET MUDIB.
Mr. Schreiner moved for leave to sue in forma
pauperis in an action against petitioner's husband,
John Mudie, for a judicial separation by reason of
his cruelty.
The matter was referred to counsel for his
certificate.
PETITION OF OLAFF LABS NELSON.
Mr. Giddy moved for leave to raise a loan for
the purpose of paying the balance of purchase
price and expenses on certain piece of landed
property at Retreat, bought by petitioner in trust
for his minor daughter.
The Chief Justice said these applications were
becoming too numerous. If the man wished to
buy the property why did be not do so ?
Mr. Giddy said he had not the ready money at
present, and did not wish to take the money out of
bis business.
Mr. Justice Smith : What does he want to raise ?
Mr. Giddy : £60.
Mr. Justioe Smith : Surely he should raise it
out of his business funds.
The Chief Justice said that if the land was to be
a present to the child petitioner should wait till
he had the money.
Mr. Justice Buchanan said the principle of the
application was not to be encouraged.
The Court held that there was not sufficient in-
formation before it to justify the granting of the
application.
In re THE ASSIGNMENT OF SIB THOMAS 8CAN-
LEN'S ESTATE.
Assignment for benefit of creditors.
Mr. Schreiner moved for the sanction of the
Court to the proposed acceptance by the official
liquidators of the assignment of the estate of Sir
Thomas C. Soanlen, a debtor to the bank.
The Chief Justice asked if the liquidators of
the Cape of Good Hope Bank agreed.
Mr. Schreiner said yes, but there was some ob-
jection on the part of certain creditors of the
Union Bank. Counsel proceeded to state that he
moved on notice to the attorneys for the
objectors, and that the petition of the liquidators
of the Union Bank set forth that Sir Thomas
Scanlen was a debtor to the bank in the sum of
over £87,000, and had proposed an assignment of
his estate, subject to the Court's approval. Notice
had been published in the Gazette, and the deed of
assignment was in aecordanoe with the netioe.
The liquidators were of opinion that the assign-
ment was for the benefit of the liquidation, and no
348
opposing affidavit had been filed. The agreement
effected an out-and-out assignment of the estate,
and he might state that when the Court recently
ordered Sir Thomas Scanlen £600 in the liquida-
tion of the Cape Central Kailweys he at once
handed over his share to the liquidator*. The
assignees were two of the liquidators of the Union
Bank and two of the Cape of Good Hope Bank,
and nnder the peculiar circumstances of the case
these gentlemen had agreed to charge no fees,
which would mean a substantial benefit to the
estate. The deficiency as per schedules was
£42,060, and it was impossible for the debtor, at
his time of life, to right himself with that burden
of debt round his neck.
The Chief Justice asked if the terms were more
favourable to the liquidation than the proposed
arrangement which the Court refused to sanction
recently.
Mr. Schreiner said he could not answer that
better than by saying that the assignment was
complete. There was no fixed figure named now,
and the whole of the estate would be distributed.
The assignment was as complete as if insolvency
had taken place. All the life policies were
included, although, if strict law were enforoed, at
least one would be kept for the benefit of the wife
and family ; even the household furniture was
given up, and not a single stick left out. The
letter of objection was signed by ten contribu-
tories, and set forth that they protested against
the debtor's release, seeing that he had had the
use of a sum larger than the entire capital of the
bank, and that the objectors might be called on to
pay further calls. With regard to that letter all
he (counsel) could say was that Sir Thomas
Scanlen proposed to do more than could be done
if insolvency were resorted to.
Mr. Justice Buchanan : It is simply a question
of assignment or insolvency ?
Mr. Schreiner : That is it.
Mr. Justice Buchanan : He is not a share-
holder?
Mr. Schreiner: No, a debtor, and insolvency
can only result in Iobs and expense to the
creditors.
The Chief Justice : You see, it is not quite
correct to say that there is no difference between
insolvency and assignment, because in insolvency
there would be some years in which creditors
could claim.
Mr. Sohreiner said he did not wi*h to argue the
case because it was eminently for the Court's own
discretion, but he suggested that the liquidators
were aware of what seemed best in the interests of
all concerned.
The Chief Justice said that if the liquidators
had not previously made a proposal, which the
Court could not possibly accept, it might have
been different, but as it was, a proposal was made
recently of such a nature as to take the force from
counsel's remark that the liquidators proposed the
present arrangement.
Mr. Schreiner said that in the previous case the
Court said the arrangement might be for the
benefit of the Standard Bank. On that occasion
the Court took the view that the Standard Bank
would have got some profit.
The Chief Justice : Undoubtedly it would have
done se. It would have got the lions share of the
estate.
Mr. Schreiner : Would the Court, because of
that perhaps short-sighted recommendation, now
object to a full and complete assignment ?
The Chief Justice : It is only in reference to
your remark that the liquidators know what is
best. In that case the Court knew far better than
the liquidators what was best.
Mr. Schreiner said the liquidators only proposed
to follow the course taken in very many other
cases, the Court having granted many similar
applications where there was proof of a bvnorfide
assignment. He did not see why Sir T. Scanlen
should be dealt with in a speoial way, seeing that
there were no special circumstances in his case.
The Chief Justice said that most of those
cases had been those of unfortunate shareholders,
whereas the present case was that of a person who
had been heavily inv olved as a debtor.
Mr. Schreiner said that many of the cases he
referted to were those of debtors.
The Chief Justice said the only point was
whether the arrangement was for the benefit of
the creditors.
Mr. Juta, who appeared for the objectors, said
he was instructed on behalf of gentlemen who had
paid calls of very nearly £100,000, and he would
therefore submit that they had a very interested
voice in this matter. The fitst thing he had to
point out was that under the proposed assignment
the only persons who were really interested were
the shareholders of the Union Bank, because the
promissory notes held by the Standard Bank and
the Cape of Good Hope Bank were backed and
secured by good name*, and would be met, so that
each of those institutions would get its 20s. in the
£. in the case of the Union Bank, the only
asset the liquidators had te fall baok on
was the insolvent estate of W. A. Lippert
A Co., and that meant that the share
holders would not benefit much by this assign-
ment. There was no wish, on the part of those
for whom he was speaking, to force Sir Tnos.
Scanlen into the Insolvency, but the objectors did
not see why Sir Thomas should be released for
ever. They said that any surplus money they
had, over and above what was necessary for bare
existence, was liable to be taken for calls, and
they did not see why this debtor should be
allowed to keep the surplus in his case.
349
The Chief Justice : Supposing Sir Thomas
Scanlen sent in his petition for the surrender of
his estate, would not the Court accept it ?
Mr. Juta : I suppose it would.
The Chief Justice : And that result will probably
follow if this application is refused, and if there
were a surrender I am satisfied that the liquida-
tors would get less than under the arrangement
now proposed.
Mr. Justice Buchanan said that what struck him
was that the shareholders would be considerable
lasers if insolvency were forced.
Mr. Juta suggested that the debtor should offer
lome arrangement by which his earnings for some
two or three years ahead should go into the assign-
ment funds. He quite saw the force of the views
put forward on the other side, but here were
nearly a dozen business men for whom he was
instructed, and he felt that if they did not know
what was best in their own interests he could not
lay claim to that knowledge.
The Chief Justice : The fact that a somewhat
satisfactory arrangement could now be entered
into between the liquidators of the Union Bank
and Sir Thomas Scanlen showed how necessary it
was for the Court to refuse the previous appli-
cation, because he was quite satisfied that under
the present arrangement the shareholders of the
Union Bank would be much more benefited than
under the previous one. Still, the objection came
from shareholders, and it had been urged by Mr.
Juta that they ought to know best whether it
was to their interest that this agreement should
be accepted or not. He could not help saying that
there must be some feeling of soreness on the pact
of those who were under this great liability to
contribute towards the debt of the bank, that they
should be continually called on to pay the debts
while one of the debtors should be released, and
this feeling of soreness had probably had some
influence on these gentlemen in the opinion which
they had formed ef the case. The Court must
look at the matter from an entirely impartial
point of view, and mainly from the point of
view of what was for the interest of the
shareholders and the creditors, and looking at
it from that standpoint, he was satisfied that it was
for their benefit that the present arrangement
should be accepted. If it were not accepted he
was satisfied that the estate would be forced
into insolvency, which would mean heavy commis-
sions and expenses, whilst the estate would not
realise as much as under the present assignment.
Under all the circumstances, therefore, the Court
was of opinion that the proposed assignment
should be sanctioned as prayed.
Their lordships concurred.
THE PETITION OF B. REINHARD.
Mr. Giddy moved for authority to raise a loan of
£125 on mortgage, for the repair of property in the
occupation of petitioner. From the statement of
counsel it* appeared that petitioner was left certain
houses in Cape Town by will, on condition that he
kept them in a state of proper repair. Petitioner
was an old man, in a very feeble state of health.
He was very poor, having insufficient to live on,
and could not therefore repair the property, which
the Town Council had called on him to do without
delay. The heirs into whose possession the
property would come at petitioner's death had
been applied to, but had refused to come to his
assistance. Counsel admitted that the terms of
the w'll were clear, but submitted that under the
special circumstances the Court would be justified
in interfering.
The Chief Justice said that these hard cases
made bad law, and the Court could not set the
provisions of the will aside.
The prayer was therefore refused.
IN BE THE CAPE STOCK-FARMING COMPANY.
Mr. Schreiner mentioned that in this matter he
appeared for Mr. Vardy, who had filed eertain
affidavits, and now asked that the Court would fix
a date by which the respondents should be called
on to file answering affidavits. He mentioned
January 12, if that would suit the Court.
The Chief Justice said that date would serve,
since he was sure the Court would not be ready to
hear the case before that time.
DU TOIT T. LOUW.
Mr. Searle and Mr. Tredgold for plaintiff ; Mr
Juta and Mr. McLachlan for defendant.
This was an action brought by Mr Jacobus J.
du Toit, of Fraserburg, against Mr. Jacobus J.
Louw, of Beaufort West, to recover £396. The
matter originally came before the Court as a pro-
visional case, but the parties agreed to its trial as an
action. Defendant signed two promissory notes, one
for £400 and the other for £800, in favour of plain-
tiff, payable two months and four months after
date respectively. Subsequently £300 was paid,
and plaintiff admitted owing defendant £4 in re-
spect of a transaction in vinegar. He now claimed
the remaining £396. The plea admitted the formal
facte, but stated that £286 17s. was all that was
owing, and that defendant tendered.
Evidence was given as to the items of account
in dispute.
After argument,
The Chief Justice gave judgment. He said that
counsel for the plaintiff having abandoned several
items, all that the Court had to give judgment on
were those of £10, the difference on the exchange
350
transact ion, and £90, the price of the spider. As
to the first, the Court was inclined to accept the
version of the plaintiff, and with regard to the
spider it appeared from the books that there was
clearly a sale, and the plaintiff was to be believed
on that point also. Judgment would be for plain-
tiff for £886 17s. on the promissory note, with costs
from the date of summons.
[Plaintiff's Attorneys, Messrs. Tredgold, Mc-
Intyre & Bisset ; Defendant's Attorneys, Messrs.
van Zyl & Buissinne. ]
JOUBKBT V. THOMSON.
Seduction — Action — Damages — Maintenance.
Mr. Jmta for plaintiff; Sir T. Upington, Q.C.,
for defendant.
This was an action for damages for seduction.
The parties reside at Britstown, and were each
about twenty years old. The plaintiff, the
daughter of a widow residing in the village, alleged
that defendant, who assisted his father in the
management of a store, seduced her under a
promise of marriage, and that in July last she
gave birth to a child, of which he was the father.
She claimed £500 as damages for the alleged
seduction.
Defendant admitted the seduction, but denied
that it was under the promise of marriage. His
counsel stated that an offer of £120, with costs to
date of tender, had been made, but plaintiff had
refused to accept it.
Mr. Juta said that with regard to the tender, it
was not made to the solicitor on the reoord, but
locally, and so was not accepted. He was willing
to take £100 and costs.
Sir T. Upington said that the costs would
amount to £160, which his client was unable to
pay.
Mr. Juta said that from what his learned friend
said it appeared that an attempt would be made
by defendant to esoape the judgment, and as that
was so he preferred to fight the case out, in the
hope ef securing alimony from defendant.
A. G. Thomson, the defendant, in reply to Sir T.
Upington, stated that he assisted his father in a
store, and received £60 per year salary, with board
and lodging. He had no property.
By Mr. Juta: He was not in the habit of
speculating in sheep. He once sold some hun-
dreds of sheep through a Mr. Duggan. They were
in his name, but belonged to his father. Pressed
further, the witness at first said that the sheep
were his father's, and then kept silence when asked
why they were not sold in his father's name. He
had been on a trading trip to Upington, but the
profits were not his. He had assisted his father
five years, and received the same salary now as
when he began. His mother died lately, and he
had been told he was an heir under the will.
The Chief Justice said the tender of £120 was
insufficient, and gave judgment for the plaintiff for
£100 with costs, and also for a maintenance charge
of £1 per month until the child reached the age of
sixteen years, payment to date from the birth of
the child, and to be made on the first day of each
month.
[Plaintiff's Attorneys, Messrs. van Zyl & Buis-
sinne ; Defendant's Attorney, Paul de Villiers.]
SUPREME COURT.
FRIDAY, DECEMBER 18.
[Before the Chief Justice (Sir J. H. DE VIL-
LI BBS, K.C.M.G.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
REGINA V. VI8SER.
Act 27 of 1882, section 10 — Contravention —
Conviction — Special Justice of the Peace —
Review.
The Chief Justice said the Court had considered
this case which was tried before the Special
J. P. of Laingsburg. The prisoner was charged
with contravening Act 27 of 1882, section 10, and
pledged not guilty. The justice found him guilty
on three counts, whereas there was only one, and
he was sentenced as for three separate offences,
the result being that the man was sentenoed to
three terms of imprisonment of the total period of
three months. He was not prepared to
say that a special J.P. could not for
distinct offences sentence a man to three
months' imprisonment, when each offence was
separately proved and treated ; but in the present
case there was only one count, and the J.P.
having treated the case hi that way the Court
would reduce the sentence to a fine of £2, with a
month's imprisonment with hard labour in default
of payment.
8COTT V. SYTVSB.
Building contract — Special agreement —
Architect's certificates — Condition prece-
dent—Appropriation of payments.
Mr. Schieiner and Mr. Thome for plaintiff ; Mr.
Juta and Mr. Jones for defendant.
This was an action instituted by Messrs. W. *
G. Soott, builders and contractors, Cape Town,
351
against Mr. L. Sytner, hotel-keeper, to recover a
balance alleged to be due on the contract for the
building of the Palmerston Hotel, Plein-street,
Cape Town. The original contract for the build-
ing of the hotel was entered into on Angast
80, 1890, for £2,142, and £84 10«. for extras.
In March, 1891, a special agreement was entered
into upon a tender made on Maroh 16 for the
performance of certain additional work, the price
for which was to be £210.
Plaintiffs alleged that at the request of the
defendant's architect, Mr. Kansome, additional
work was done at a cost of £19 14s., for which no
agreement with the defendant was entered into.
Payments amounting to £2,150 had been made,
and action was now instituted for the recovery of
the balance under the old contract, for extras,
£76 10s. ; the amount due under the special agree-
ment, £210, and the £19 14s. for additional work,
making £316 4s. in all. The original contract
stipulated that the work should be done in seven
months. In February, 1891, the upper floor of the
hotel was taken possession of, and occupied by the
defendant, and about the close of March it was
alleged that the defendant assumed full possession
of the building, and had been in occupation ever
since. At that time plaintiffs confessed the walls
were damp in places from the nature of things, and
certain painting work had to be done in the
billiard-room, bar, entrance hall, and elsewhere,
and plaintiffs alleged that at the request of the
architect these walls were painted whilst they
were still damp, with the result that the paint
peeled off and blistered on the walls. The effect
of the painting had been to increase the dampness
and make it more diffioult for the work to be
efficiently carried out. The defendant pleaded
that he had paid £2,160, and that that amount
included the £210 and the £84 10s.
Mr. W. Soott, one of the plaintiffs, deposed that
the work had been performed according to the con-
tract, and the architect raised no objection to the
manner in which the work was carried out, nor was
any complaint ever made regarding the material for
the walls. When the walls of the ground floor were
painted they were damp, it was usual to allow
months to elapse before the walls were painted. He
pointed out to the architect that the walls were
unfit for paint, but the architect replied that defen-
dant must have them painted, whereupon witness
agreed to paint them, but at the same time in-
formed Mr. Ransome that he knew what the conse-
quences would be. In March the walls began to
sweat and blister, and he told Sytner, in the pre-
sence of the arohitect, that what had happened
was just what witness had expected. He had
made repeated offers to complete the painting, but
the walls were still damp.
By Mr. Juta : He knew that the walls were quite
unfit for paint when they were coated. His excuse
2z
was that the arohitect requested him to do it. It
was true that the architect sent his firm a
letter objecting to the way Borne of the work
was done, but that only referred to the doors.
He could not say if it would injure the plastering
when the paint was taken from the damp walls.
He admitted that at a meeting in July last,
between defendant, the architect and witness, he
was to be paid for the painting on condition that
he irot the architect's certificate. He remembered
asking Sytner on one occasion for money, when
the latter refused to pay any money in the
absence of Mr. Ransome's certificate. It was not
true that the price of the second contract was
reduced beoause items inoluded in it were really
embodied in the first contract.
By the Court : Under the second eontract all
work was to be under the supervision of the
architect, and approved by him before payment.
Mr. Justice Smith : Why did you reduce the
second contract by £103 ?
Witness : To save Mr. Sytner's licenoe and get
the work out of hand
Mr. Justice Smith : Did Mr. Ransome ever
certify for any amount under the second contract ?
Witness : It was paid generally and not under
one special contract. I applied for money, and
generally got it on Mr. Ransome's certificate.
Re-examined : The difference in price between
the second contract as originally drawn up and
the contract as adopted was caused by the fact
that in the first instance only a rough estimate
was made.
Mr. G. F. Scott deposed that be was present at an
interview between his brother, Sytner, and the
arohiteot when the latter authorised the painting
of the walls, although it was pointed out that they
were damp.
Further evidence in support ef the plaintiffs'
case was given by Messrs. James Scott, James
Callaghan, James Lister, James Proctor, William
Joetzen, Frederick English, John Parker, and
George Smart.
For the defence,
Mr. George Ransome, architect, gave evidence
that the last payment he made to William Scott,
one of £400, included the £210 now claimed, and
this left some money owing on the first contract,
which provided that witness was to retain in his
hands 20 per cent, of the contract money until the
work had been completed to witness's satisfaction.
Witness had stretched a point in Scott's favour,
and had less money in hand at present than he
could have claimed under the contract.
By Mr. Schreiner : It was fully explained to
Scott that the £400 inoluded the amount of the
second contract, £210. The certificate for £500 he
gave last February was less 20 per cent and less
extras. Scott came to him and asked specially
for the £210 and the extras. The deduction he
352
was entitled to make was a fifth of £2,142. He
contended that if the walls remained wet for
another season the plaintiffs would still have to
wait for their money. It was not true that witness
ever direoted Scott to paint the walls whilst they
were wet. That story was an absolute fiction, and
he oontradioted the plaintiffs flatly on that point.
He understood the walls were not to be painted
till they were dry, and immediately he found the
men painting he had the work stopped.
The Chief Justioe : Dees it not seem unfair,
when a builder has completed all his work save
£20 worth of painting, that the arohiteot should
retain £800 or £400 ?
Witness said that was the custom, and that he
was bound to protect the interests of his clients.
Mr. L. Sytner, the defendant, stated that he
always understood under the contract that he was
entitled to retain 20 per cent, of the contract price
until after completion and the granting of the
architect's certificate. He never teld Scott that
he wanted the hotel painted before the walls were
properly dry. He never addressed Scott on the
subject at all.
By the Court : When the arohiteot asked him
to pay the £400, it was understood that it included
he £210.
Mr. W. Scott, recalled, said that when Mr.
Ransome gave him the last certificate for £400,
he did not state, so far as witness remembered,
that it covered the £210 and the £84.
Cur ad vult.
Postea (Dec. 19.)
The Court delivered judgment.
The Chief Justice said. In August, 1890, plain-
tiff entered into a building contract with defen-
dant, and a clause of the contract provided that
payments were to be made on the certificate of
the architect on the measured value of the work
executed, less 20 per cent., one-half of which was
to be paid on completion of the work, and the
balance six months afterwards, on receipt of the
architect's certificate. It was clear from that con-
tract that it was a condition precedent before the
plaintiff could recover that the certificate of the
arohiteot should be produced, and no such certifi-
cate being forthcoming, it was clear the plaintiff
was not entitled to recover under the first contract.
It appeared, however, that by the time all the
works under the contract were finished, another
contract was entered into between plaintiff and
defendant, to which the arohitect was no party.
The plaintiff undertook to execute the work
mentioned in the second contraot for £210, to be
paid when the work was completed, and the
payment was not dependent on the architect's
certificate at all. It was true that with
regard to the new contract both parties
teemed to have supposed that the architect had
something to say, but the mere fact that the
plaintiff was under a mistake as to his true rights
oould not deprive him of those rights. It was one
of the allegations in the declaration that the
plaintiff had done the work and supplied the
material under the second oontraot, and that was
admitted in the plea, but defendant stated that
the £210 had been paid, and the simple question
for the Court to decide was whether the £210 due
under the new contract had been paid or not. The
Court had the statement of Mr. Ransome, that
when he certified for £400 in April that sum
included the £210 and the £84, and the plaintiff had
very fairly said he could not swear that Mr.
Ransome did not state that those sums were in-
cluded, but he said he could not remember any
such stipulation, snd he (the Chief Justioe) was
convinced that if any such stipulation bad been
made the plaintiff would have remembered it.
In the confliot of evidence, the Court would follow
the ordinary cour ae of looking to the documents,
and in his opinion they rather supported the
plaintiff's view. First of all, the certificates given
on April 8, 1891, said nothing whatever about the
£210, and in form differed but little from the
other certificates granted by Mr. Ransome. If
the matter had stopped there, some doubt might
have arisen, but Mr. Ransome's letter of July 18
was wholly inconsistent with any actual appro-
priation having been made on April 8. In that
letter Mr. Ransome spoke of a reduction of money
under the seoond contract, and the use of that
term showed that £210 was still payable by the
employer. The rules of law in regard to
appropriation of payments were well known.
In the first instance, the debtor had the right
to appropriate ; if he failed, the creditor
had the right. If the ci editor failed, then the
appropriation took place in regard to that debt
which it was most for the interest of the debtor
Bhould be appropriated ; and failing evidence on
that point the earliest items should be paid off
first. In the present case there was no clear
evidence upon these points, but there was clear
evidenoe that on July 18 there had been no
appropriation so far as Mr. Ransome was con-
cerned. The earlier items would be under the
old contract, and the appropriation should there-
fore be made in respect of them. If that were
so the sum of £210 was still owing, and in his
opinion judgment should be given fer the plaintiff
for that amount. Then there were still some
items remaining under the old contract, and as to
that part of the case he was clearly of opinion
that the defendant was entitled to retain those
sums until the certificate of the architect was
granted. It was satisfactory to find that the strict
law of the case was also in accordance with
substantial justioe, and that the defendant would
not be allowed to retain £30$ because £20 worth
3&3
of painting had still to be done, bat he would be
allowed to retain about £86. In his opinion
judgment should be for the plaintiff for £210 with
costs, with absolution from the instance as re-
garded the balance.
Mr. Justice Smith dissented from the judgment.
His Lordship said that both parties cl&arly con-
sidered that the two contract* were not distinct,
and that the architect had supervision over the
work, and had to certify for payment. Mr.
Ransome had stated that plaintiff came to him in
April, 1891, and asked for £400, which was given
on the clear understanding that it included the
£210 and the £84. He felt bound to believe Mr.
Ransome that the £210 was so paid, and if he had
been trying the case himself he would certainly
have given a verdict for the defendant.
Mr. Justice Buchanan agreed with the judgment
of the Chief Justice, ai d said that according to
the architect's own evidence it was impossible to
complete the painting work within the stipulated
time. He was not inclined to think Mr. Ransome
had stated anything which was false, but he was
inclined to think that there had happened what
occurred frequently in these cases, namely, that
what had passed through the minds of the parties
they thought they had expressed in so many
words.
Judgment was therefore given for the plaintiff
for £210 and costs, with absolution from the
instance as regarded the balance.
[Plaintiffs' Attorneys, Messrs. Reid & Nephew ;
Defendant's Attorneys, Messrs. van Zyl & Buis-
sinne.]
SUPREME COURT.
SATURDAY, DECEMBER 19.
[Before the Chief Justice (Sir J. H. DE VlLLIERS
K.C.M.6.), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
PROVISIONAL ROLL.
WESTERN fBOVINCE TRUST COMPANY V.
ROBERTS.
Mr. Juta moved for final adjudication of the
defendant's estate.
The order was granted.
LUND V. LOUW.
Mr. Schreiner moved for provisional sentence on
a dishonoured cheque for £841 6s., dated 1st
October, 1891.
Mr. Juta read the affidavit of the defendant, J ;
J. Louw, who deposed that he gave the cheque in
question to one Weeber, on the distract under-
standing that it whs not to be presented till the
9th or ICth of October. It afterwards came to the
deponent's knowledge that Weeber discounted the
cheque to the plaintiff, between whom and
deponent there was a partnership dispute pending.
Plaintiff on one occasion said to deponent by way
of taunt that he held bis cheque for £341 6s.,
whereupon deponent went to the bank and gave
instructions not to pay the cheque if it were
presented. Deponent had since found that he
only owed plaintiff £181 6s. 9d., and if judgment
were given for £841 6s., he would be obliged to
apply for a refund.
Mr. Schreiner read an answering affidavit, in
whioh plaintiff deposed that he obtained the
cheque from Weeber for value, and was therefore
its legal holder. He denied the alleged taunt, or
that he had addressed defendant on the subject.
The Court held that there was not sufficient
evidence before it to justify a refusal to grant
judgment on the liquid document, and
Provisional judgment was granted as prayed.
HASSELL'S EXECUTORS V. HEROLD.
Mr. Watermeyer moved for judgment in terms
of the consent paper put in.
Judgment was granted accordingly.
S.A. ASSOCIATION V. LEA BY.
Mr. Maskew moved for judgment in terms of
the consent paper put in.
Judgment was granted accordingly.
BRUCE V. WILLIAMS.
Mr. Webber moved for judgment on an unsatis-
fied debt of £19 Is. 9d.
Judgment granted.
JACOBS V. EAST.
Mr. Molteno moved for judgment for £8, being
arrear calls on a share in the Waterloo Gold-
mining Company, with interest and costs of suit.
Counsel stated that the £8 having been paid all
that was asked for was interest and costs.
Judgment granted.
KLINCK V. KLINCK.
Mr. Schreiner for plaintiff; defendant in de-
fault.
This was an action for restitution of conjugal
rights, failing which for divorce and custody of
the ohild of the marriage. From the statement of
3k
the petitioner, Eliza Susan Klinok (born Roux), it
appeared that the parties were married at Rivers-
dale on November 29, 1886, and went to live at
Oalitzdorp, where they remained a year, when
petitioner went to live at Stellenbosch with a Mrs.
Kannemeyer. Defendant did not accompany her,
but when she had been at Stellenbosch some
months he came down, and they lived together
for a month in Cape Town, at the end of which
period defendant left hie wife and went to Cal-
vinia, where he had been since 1889. Petitioner
stated that she had given her husband no cause to
leave her, and that he had done nothing to support
her for some years. She was willing to go to her
husband if he would send her money, she was now
supporting herself and child by giving music
lessons at Stellenbosch.
The Court granted a decree of restitution of
conjugal rights, the defendant to return to his
wife, or receive her, by January 12, failing whioh a
rule would be granted calling on him to show
cause on February I why a decree of divorce
should not be granted and the plaintiff given the
custody of the child. Personal service of the
present order.
iPARTBIDGE V. PARTRIDGE.
Mr. Watermeyer for the plaintiff ; defendant in
person.
This was an action for divorce on the ground of
adultery. The parties were married in 1870, and
there were three children of the marriage. Hus-
band and wife lived together tiU 1889, when Mrs.
Partridge brought an action against her husband
for a judicial separation and maintenance. On
that occasion judgment was given in terms of a
consent-paper, and the parties then lived apart.
During the present year it oame to the knowledge
of the plaintiff, by the report of a case tried in
that Court, that the defendant was living in
adultery with another woman, and the present
action was instituted. Plaintiff asked for a decree
of divorce, custody of the minor child, and an
order of £8 per month against the defendant for
the maintenance of his wife and child.
Defendant admitted the adultery, but stated
that he was wholly unable to contribute anything
towards the maintenance of his wife or children,
or to pay the costs. When the judgment in 1889
was given, he handed over property worth £700
for the benefit of his family, and had given up
everything he possessed. He was now without
means, and out of employment.
A. W. Loader, a private detective, proved
the adultery of the defendant with a Mrs. Bodley,
the wife of a tobacconist at Kimberley, who
recently obtained a divorce.
Mr. Watermeyer said that as to the property, it
was burdened with £276 of debt and mortgage,
and was in the hands of a public body, the rents
being applied to the discharge of the debts. So
far Mrs. Partridge and her children, one of whom
was a minor, had not received a penny.
After consultation with her counsel,
Plaintiff stated that she would not press her
claim for maintenance
The Court granted a decree of divorce, with
costs, against the defendant, plaintiff to have the
custody of the children, the Chief Justice remark-
ing that it was solely because Mrs. Partridge
offered to maintain herself and her child by her
own industry that the Court did not make an order
as to maintenance
[Plaintiff's Attome}s, Messrs. Fairbridge &
Arderne.]
SUPREME COURT.
MONDAY, DECEMBER 21.
[Before the Chief Justice (Sir J. H. DE VlL-
LIERS, K.C.M.O.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
REHABILITATIONS.
The Court granted the rehabilitations of
Hendrik Jacobus Kuhn and William Williams.
THE ESTATE OF THE LATE MARTIN
MCNAMABA.
Mr. Shiel moved to make absolute the rule nisi
issued under the Titles Registration and Derelict
Lands Act of 1881, for transfer te the said estate
of certain lots of ground, portions of the Jennings
property situated at Port Elizabeth.
The order was granted.
PBINCE V. PRINCE.
Mr. Jones moved to make absolute the rule
nisi admitting the applicant to sue in forma
pauperis in an action against her husband for
separation, custody of the children, and main-
tenance.
The rule was made absolute, and Mr. Jone*
appointed to act as counsel.
PEL8ER T. VAN DEB LINDE.
Mr. Juta moved for leave to attach ad
fundandam jurisdictionem of this Court certain
half-share of the farm Rooipoort situated si
355
Xalanga, in an action about, to be instituted by
applicant for respondent's share of quitrent
thereon.
The order was granted, and made returnable on
the first day of next term, personal service to
be effected.
THE INSOLVENT ESTATE OF NICOLAAB J.BOTHA.
Mr. Juta mored to make absolute the rule nisi
for the removal from his office of trustee te the
said estate of Paul Nel, a resident at Pretoria,
South African Republic
The rule was made absolute, and the Court
granted Mr. Sheard, trustee in the estate, an ex-
tension of time of six months from November 20,
1891, in which to administer the estate.
PETITION OF WILHELMINA S. M. ODEXDAAL.
Mr. Searle moved for a rule nisi requiring
petitioner's husband to show cause why she should
not be admitted to eue him in forma pauperis in
an action for divorce by reason of his adultery.
The rule was granted, and made returnable on
January 12.
PETITION OF ELIAS MARK.
Mr. Juta moved for a rule nisi requiring one
Solomon Koske to show cause why applicant shall
not be allowed to sue him in forma pauperis in
an action for restoration of certain articles of
gold and silver deposited with him by way of
pledge.
The rule was granted, and made returnable on
January 12.
KUUN V. ATTORNEY-GENERAL.
Bail bond— 73rd Rule of Court — Indictment
— Notice of trial — Sufficient service —
Recognizance estreated — Writ of execution.
Mr. Jnta moved for an order settiog aside
certain writ of execution for £60 issued against
applicant in respeot of the amount of a bail bond
whieh he entered into to seoure the attendance of
one Gideon A. Jacobs, committed for trial on a
charge of contravening the provisions of the Land
Beacons Consolidation Aot, 1866.
Counsel read the affidavit of the applicant, from
which it appeared that the bail bond was entered
into on the understanding that the prisoner should
accept service at Victoria West, but that no such
•ervice was made. The prisoner was indicted at
the recent Criminal Sessions at Cape Town.
Mr. Giddy appeared for the Crown, and read the
affidavit of Mr. H. R. Dale, of the Attorney-
General's Department, who deposed that service
was not made as orginally intended for the
reason that Jacobs had absconded, and was not to
be found. Service, however, was made upon his
wife at hie address, every effort having been made
to discover Jacobs himself.
Mr. Juta referred to the 73rd Rule of Court, and
argued that as the defendant had elected to have
the indictment served on him at a certain place,
and that as the Crown had not done that, the
recognisance could not be estreated.
Mr. Giddy read the affidavit of A. van Tromp
messenger of the R.M. Court at Fraserburg, to the
effect that deponent attended at defendant's house,
where he shut himself up in a room, and would
net accept service. He then served the indictment
and the notice on the wife, but her husband called
to her to throw them out of the window, which she
did, whereupon deponent placed the indictment
opposite the house, placing a stone on it to prevent
its being blown away. Afterwards deponent saw
defendant entering the house of one Van der
Volk, and went up to him and explained the indict-
ment and notice, which he then again served on
the wife at defendant's house.
Mr. Juta contended that his client could claim
his strict rights under the bond, and that as the
bond stipulated for service at Victoria West, and
servioe not being effected there, he was not liable
on the bond. Kuun had warned the Resident
Magistrate that Jacobs intended flight ; but the
Magistrate did nothing at all to incarcerate him
until his trial.
Mr. Giddy said that immediately the Magistrate
received notice from Mr. Kuun steps were taken
to arrest Jacobs, who was sought all over the
country.
The Chief Justice said that the bail bond could
not be estreated unless a copy of the notice and
indictment had been served upon the defendant or
left at the place specified, and the question was as
to whether that had been done in the present
case. The facts were of such a nature that in his
opinion the Sheriff would have been quite justified
in statirg in his return that the notice had been
personally served. The messenger entered defend-
| ant's house and found his wife, upon whom he
served a notice. Later on he saw defendant and
i
explained the indictment and notice to him, and
then went to his house and served the notice on
the wife again. Her husband told her to throw
the dooument out of doors, whioh she did. Under
those circumstances it would be folly to say there
had been no service. The application must be
refused with costs.
356
MU8ZLAK V. COLE.
Landlord and tenant — Forcible entry — Inter-
dict — Coats.
Mr. Giddy moved to make absolute a rale ritit
interdicting the respondent from further breaking
down or interfering with the kitchen and other
premises on the property in Loop-street of whioh
applicant is the lessee, until the respondent shall
have provided other suitable premises in their
stead. Counsel stated that the applicant was the
lessee of a house in Loop-street, which respondent
recently purchased. He approached the applicant,
and as the result of a conversation between them
an agreement was entered into whereby Cole was
to take the kitchen and water-oloset, on condition
that he erected new rooms for the applicant, who
now stated that the respondent had net supplied
the new rooms, but had broken down the walls
of the kitchen and water-closet, and rendered them
impossible to be used. Applicant therefore prayed
for an order ejecting the respondent.
Mr. Searle appeared for the respondent, who de-
posed that he purchased the property at a time
when Muszlak's tenancy was nearly at an end.
An arrangement was arrived at, however, whereby
deponent was to have the use of the kitchen and
small room, on condition that he supplied kitchen
accommodation and water-closet for the use of the
applicant and reduced the rent from £6 to £5 10s.,
applicant to have the option of leaving the house
on a month's notice. Applicant had agreed to
deponent's conditions in the presence of two
independent witnesses, but when the workmen
were sent to perform the alterations they were
refined admission altogether. Counsel stated that
the respondent had no wish to ask fo * anything
unfair, but he had purchased the property for the
purpose of extending his trade, and naturally
desired the use of the kitchen and pantry. He
had no objection to supply Muszlak with tem-
porary kitchen and water-closet accommodation,
provided he were permitted to proceed with the
alterations to the property.
Mr. Muszlak, in reply to the Court, stated that
the stove promised by Mr. Cole did not arrive till
noon of the day when the workmen commenced
breaking down the kitchen. For five hours he
was without kitchen accommodation. That was
before the interdiot was applied for.
Mr. C. J. Cole said the stove was sent at eight
o'clock on the morning of the 15th, before the
interdiot was applied for. Muszlak refused to
allow the men to fix the stove in position.
Mr. J. H. Comyn deposed that he was present
when the parties agreed to the arrangement under
whioh Cole was to have the use of the back
premises of Muszlak's house, and corroborated
Cole's affidavit on that point. Muszlak had refused
to allow witness to enter when he attended to fix
the stove and the temporary water-closet.
The Chief Justice, in giving judgment, said that
the applicant was in peaceful possession of the
premises, under an agreement with the respondent,
and the latter ought not to have taken the law into
his own hands, but as he was now willing to place
the stove in position and allow access to the
water-closet the rule might be discharged. The
respondent, however, would have to pay the costs.
As to the facts of the case, be confessed that he
was inclined to believe Mr. Cole's evidence.
Mr. Justioe Smith said the whole matter was
a high-handed proceeding, and unnecessary also,
since the tenant oould have been got rid of on a
month's notioe.
The rule was accordingly discharged, with costs
against the respondent.
CAIRNCBOSS V. 8HEABD.
Insolvency — Ordinance 6 of 1843, section
103 — Deed of sale — Election by trustee.
Mr. Schreiner appeared for the applicant, and
Sir T. Upington, Q.C., for the respondent.
This was an application by Mr. John Cairnoross,
of Oudtshoorn, calling upon the respondent (in his
capacity as trustee of the insolvent estate of P. J.
S. Tsrblans) to show cause why he should not be
ordered to elect whether he would or not abide by,
execute, and carry out a certain deed of sale made
and entered into between the aforesaid P. J. S.
Terblans and one Jacobus Esaias Meyer on the 6th
May, 1884, and should he elect to take over the
deed, why he should not forthwith pay the sum of
£126, being the balance of the purchase
amount of the property thereby sold,
or having elected not to take over the
said property, why he should not be ordered
forthwith to deliver over the said property to the
applicant. It appeared from affidavit that Mr.
P. J. 8. Terblans, prior to his insolvency, namely,
on the 6th May, 1884, purchased from his brother-
in-law, J. E. Meyer, certain landed property of
which the vendor became possessed under the will
of his mother and surviving father, Nieolaas
Meyer. J. E. Meyer, shortly after his mother's
death, was shown by his father what portion of
the farm he was to occupy, as directed in the will ;
whereupon he took possession of the landed
property pointed out to him, built a dwelling-
house, together with outbuildings, and commenced
te irrigate the land, making improvements to the
value ef at least £800, all which buildings and
improvements he made with borrowed money. In
the early part of 1884 he found himself in financial
difficulties,! whereupon his father advised him to sell
857
hit interest under the will to his brother-in law the
aforesaid P. J. S. Terblans, the father at the same
time advising his son-in-law to purchase the said
interest at the price mentioned in the deed of sale,
at the same time promising to give Terblans trans-
fer when the testator's minor son, S. S. Meyer,
became of age. Aoting upon the faith of this
promise Terblans purchased the property and paid
his brother-in-law Meyer the purchase price
agreed upon exoept £125, which latter
amount was to be paid when S. S. Meyer
came of age. In July, 1886, J. B. Meyer sur-
rendered his estate as insolvent. On the 12th
October, 1886, the trustee of the insolvent estate
of J. B. Meyer sold by poblic auotion the in-
solvent's rights under the said deed of sale, which
included the £126 balance of the purchase price
above referred to. One Samuel Hulme became
the purchaser of these rights, and some time after-
wards pledged the balance of £125 to applicant as
a collateral security for moneys advanced. In
April, 1891, Hulme ceded his rights as aforesaid to
applicant for £126 and the latter became the legal
holder thereof . In December, 1890, S. 8. Meyer
became of age. In March, 1891, Hulme obtained
judgment against Terblans in the Circuit
Court at Mossel Bay for the amount of the
balance due (£126) on the said deed of sale,
whereupon Terblans surrendered his estate. At
the third meeting of Terblaos's creditors a resolu-
tion was passed empowering the trustee to take
counsel's opinion concerning the rights of the
insolvent under the will of the late J. 8. Meyer
and surviving spouse Nioolaas Meyer, and also
concerning these rights purchased from J. B. Meyer,
and to act upon said opinion. On the 28th May, 1891,
applicant wrote to the trustee concerning his claim,
and after some further correspondence had taken
place the trustee wrote to applicant stating that he
declined to admit his claim, as section 103, Ordi-
nance 6 of 1848, did not apply to applicant's claim.
At a special meeting of creditors held in Novem-
ber last the trustee was authorised to sell the
rights under the will of the late J. S. Meyer and
surviving spouse Nioolaas Meyer. In consequence
of this resolution, and of the trustee's refusal to
recognise applicant's claim, the present application
was made.
Mr. Bchreiner, for the applicant, contended that
the 103rd section did apply, and that the trustee
should be put to his election as to whether he
would abide by the deed of sale or admit appli-
cant's claim as preferent for £125 and interest.
Sir T. Upington, Q.O, for the trustee : The
103rd section does not apply ; that section only has
reference to contracts pending bnt in respect of
whioh nothing definite has been done.
Cur ad vult.
fortes (January 5th, 1892).
The Chief Justice delivered judgment. His
Lordship said the application was made under the
103rd section of the Insolvent Ordinance, which
enacted that the Court had the power of making
an order calling upon trustees to deliver up the
agreement and the possession of the premises
to the vendor or anyone entitled t* claim
under him under certain oircumstanoes, but
in the present case it was clear that no such
order could be made, for the reason that the
parties mainly interested were not before the
Court. It appeared that one Meyer sold his
inheritance to his brother-in-law, Terblans, and
£125 was left still unpaid. The right to reoeive
the £125 was sold by the trustee in the insolvent
estate of Terblans to one Hulme, who sold it
to Cairnoross, who now brought a motion to enable
him to recover the £125. It also appeared,
however, that under the will of Meyer's father
there was an express provision that the heirs
should not be allowed to alienate, except to their
co-proprietors, and that on the insolvency of one
or more of them his or their shares should pass to
the co-proprietors, and the difficulty now was that
these co-proprietors were not before the Court.
Without having those persons before it the Court
would make ne order depriving them ef their
rights under the will. The Court was of opinion
that this was not a case in whioh the 103rd section
was intended to apply, and the application in its
present form would therefore be dismissed with
costs.
SUPREME COURT.
(IN CHAMBERS.)
TUESDAY, DECEMBER 22.
[Before Mr. Justice BUCHANAN. J
IN BE UNION BANK, IN LIQUIDATION V. BEIT.
Mr. Schreiner moved for the appointment of a
commission de bene es»e to take the evidence of the
defendant in the above suit, who is leaving for
England on the 80th instant, and also to take the
evidenoe of Mr. Edward Lippert.
Mr. Searle opposed the application, on the
grounds that the absenoe of Mr. Alfred Beit at
the trial would seriously prejudice plaintiffs' case.
The Court granted the commission, and ap-
pointed Mr. Tredgold commissioner.
358
IN RE THE MINOR CATHARINA H.
8PANGENBERG.
Mr. Soarle presented the petition of Mr. J. M.
Spange i. btrg, the father and natural guardian of
the above-named minor.
It appeared from the petition that petitioner in
October, 1875, purchased a certain piece of land
situated at Mostert's Bay, Hottentot's Holland, in
the division of Stellenbosch, for a sum of £10,
and had the same transferred to his minor
daughter, and that the said piece of land has since
considerably increased in value. That the Court
on the 21* th May, 1890, granted petitioner leave to
mortgage the said land for £500, he bindiog him-
self as surety for the due interest on
the bond and taxes on the property.
That the amount of the said mortgage was
devoted to the erection on the said property
of a building just completed, to be used as an
hotel and boarding-house, at a total cost of £1,600.
That petitioner had advanced moneys and pledged
his credit to the amount of £ 1 ,000 in connection with
the said building, and that a sum of £500 was now
required to liquidate the outstanding liabilities
thereon. That petitioner could obtain a sum of
£1 .000 on first mortgage of the said property, where-
of £600 would be devoted to paying off the existing
mortgage r nd the balance of £500 to the liquidation
of the liabilities incurred in connection with the
building. That petitioner was prepared to bind
himself as surety for the said sum of £1,000 and
the interest thereon, and to mortgage certain other
properties valued at £ 1 ,260, 6ubjeot to an existing
mortgage thereon of £800. The petitioner prayed
that the Court would authorise him to pass a first
mortgage on the property transferred to his minor
daughter for the sum of £1,000.
His Lordship remarked that the whole proceed
ing was very undesirable, and ordered the matter
to be referred to the Master for report.
DUMPER V. THE DUMPER DEVELOPING
SYNDICATE.
Mr. MoLachlan, on behalf of applicant, moved
for leave to sue in forma pauperis in an action
about to be brought against the defendant com-
pany.
The matter was referred to counsel for his
certificate.
■ii^
EASTERN DISTRICTS COURT.
THURSDAY, JUNE llTH, 1891.
[Before Sir JACOB BABBY (Judge President),
Mr. Justice S. T. JONES, and Mr. Justice
C. G. MAA8DORP.]
DESCHAMPS V. VAN ON6ELIN.
The Judge President delivered judgment as
follows : This ease has been removed frem the
Supreme Court for trial at the Girouit Court of
Port Elisabeth, and from there to this Court.
The declaration states that on October 18th, 1858,
one Landman sold to defendant one-fifteenth
share in the farm *' Hartebeeitfontein," district of
Humansdorp, for £200; that on April 1st, 1869,
Landman passed transfer of it to defendant, who
paid £100 on account of the purchase amount;
that on Oct. 20th, 1868, defendant signed an
acknowledgment of debt in Landman's favour for
the balance of £100, payable 20 years after date
with interest at 2 per cent, per annum, whioh
interest defendant paid up to 1876 in terms of a
memo. ; that Landman then died, his wife
(married to him in community of property) being
appointed his executrix ; that this acknowledg-
ment of debt being mutilated, defendant signed a
new one in the same terms as the former ; that on
March 7th, 1888, Landman's wife, for herself and
as executrix, for valuable consideration ceded to
plaintiff all her right and title to this £100, with
interest due and to become due, and handed
plaintiff the acknowledgment ; that on Sept. 26th,
1890, the terms of this cession were embodied in a
document signed by Landman's wife; that all
things have happened to enable plaintiff to
recover this £100 from defendant, who has
neglected and refused to pay it or any portion of
it, though requested. The prayer is for £ 100, with
interest at 2 per cent, per annum from 1876. The
document of Sept. 20th, 1860, signed by Landman,
was annexed to the summons and copy thereof
served on defendant, and in it, it is distinctly
stated that £88 was the consideration paid on
March 7th, 1888. The plea entered before
removal from the Supreme Court is that
defendant is married to a daughter of Landman,
who being desirous to provide for his children
3a
(inoluding defendant's wife), transferred on behalf
of these children certain immovable property, of
whioh " Hartebeestf ontein " being part was
transferred to defendant as husband of this
daughter as a donation and not by way of
purchase ; that defendant did on Oot. 20th, 1869,
sign an acknowledgment to pay Landman £100;
but denies that it represented the balance of the
purchase price of this farm, but says that it was
executed as a security to Landman for the
payment of the interest therein mentioned as part
provision for the maintenance of himself and
wife, whioh was duly done, and thereby the
necessity for such maintenance having ceased, as
it did before aotion, the acknowledgment was
and is null and void. Defendant admits that he
paid interest to Landman as alleged up to 1876,
but denies the mutilation and substitution of the
acknowledgment or oession to plaintiff as alleged
in the declaration. The replication was general.
At Port Elizabeth defendant seems to have
abandoned the only defence pleaded, and in a
consent-paper, drawn up and signed by the
attorneys on both sides, the following facts are
presented to this Court, viz., " That full consider-
ation was given by defendant to the payee of the
original promissory note for £100 (this does away
with the special plea) ; that the promissory note
was passed by the executrix of the payee to
plaintiff for £38, being partly in payment of a
debt due by her to the plaintiff and partly for cash
paid to the executrix by the plaintiff ; at the time
of the transfer of the promissory note to plaintiff
it was agreed between plaintiff and the executrix
that in consideration of the risk attaching to the
recovery of the amount of the acknowledgment
of debt, and of the period still to elapse before the
due date of the same, the plaintiff should pay the
lesser sum of £88 for the acknowledgment and
should take upon himself all the risk attaching to
its recovery." This is the entire record and all
the evidence. It does not appear from the record,
or the judge's notes, that the defendant expressly
abandoned his plea, whioh still remains on the
record as the only plea pleaded. In it he denies
that there was ever any obligation on his part to
pay the acknowledgment for £100, which he says
was executed by him merely as a security to
Landman for £2 a year as part provision for the
maintenance of Landman and his wife, whioh
obligation having before aotion ceased, the
acknowledgment was a nullity. If this had been
360
proved, the plaintiff would have suffered a total
loss of his £38 and interest and costs of his suit.
The executrix had guarded herself against any
recurrence upon her by her agreement of March
7th, 1883. It is true that the defendant, by his
admission in the consent-paper, supplies the Court
with evidence disproving his allegations in the
plea, but the plaintiff oints to the plea and says
that it is not in defendant's mouth now to say
that it was an undoubted obligation by him to pay
this £100, and that the risk cf loss, and even total
loss of the £38, did not attach to the purchase of
this acknowledgment. It does not appear from
the record or judge's notes, or from anything
stated by defendant's counsel, that before the
removal of the case from Port Elizabeth,
defendant claimed any right of stepping into
plaintiffs shoes, either by tendering the £38 and
interest or even by offering to pay it. No such
offer has hitherto been made by defendant, and
the Solicitor- General's statement, that the
defendant's ability to pay the £38 is questioned, is
not contradicted for the defendant, whose counsel
only contends that upon the evidence as it now
stands the plaintiff was never entitled and never
can be entitled to a judgment for more than £38
with interest. From the record and consent-paper
1 must assume that full consideration was paid by
Landman for the promissory-note for £100 before
Oct. 20th, 1889, and that it bears interest at only
2 per cent, per annum, payable Oct. 20th, 1889 ;
that at Landman's death it was by his wife and
executrix, on March 7th, 1883, and at a time when
this interest at £2 a year was in arrear or unpaid
more than 6 years, trau sf erred to plaintiff, who in
addition to paying £88 (consisting partly of a
pre-existing debt due by the executrix to plaintiff,
and partly for cash), undertook all risks attending
recovering the amount of the acknowledgment,
which risks included the risk of its being found
not to be an acknowledgment to pay anything
except £2 a year direct to the Landmans for
maintenauoe, and nothing to anyone else as (and
because) pleaded by defendant, also the risk of
defendant's ability to pay anything even if the
obligation be not disputed, defendant's inability
being evidenoed by the circumstance that his last
payment (of what he calls interest at one time and
maintenance at another) of £2 a year was made
more than six yean before, and the further
circumstance that the very long credit which still
attached to the acknowledgment secured by
nothing, made the risk of loss not improbable, and
that to secure the uncertain chance of getting £100
in 1889 with 2 per cent, added, plaintiff actually
parted with £88, whioh with interest added at 6
per cent, would have earned about £25 before
Oct. 20th, 1889, or a total of £63
To these facts we are to apply the law. What
that law is, is disputed. Defendant's counsel does
not contend that defendant is not now liable for
anything, that the action is wrongly brought on
the acknowledgment, or that defendant has
tendered or even offered, or is able to pay the
£38 ; but that by the Lex Anastatiana (known to
the Civil and adopted by the Roman-Dutch law)
plaintiff never could and cannot now recover
more than at most £38 with interest, and
relied upon Grotius (3. 16. 14), who says:
" Whenever a jus in personam is sold to a third
party, the debtor may, at any time when called
upon, retract the claim." In commenting upon
this passage, Van dtr Keessel (663) says : M Where
such a right is not allowed by law, the party who
owes a debt bo sold and which is not secured by a
special mortgage, when summoned by the
purchaser, may always claim the right of the Lex
Anattasiana, even though he may not have been
ignorant of the sale of the debt," and in 664 he
adds : " The Lex Anastatiana does not however
apply (1) in a sale of the entire body of accountar
and (2) in a sale of Dutch securities, as correctly
laid down in the Jfoilandsche Coiuultatien (V. 5,
Cons. 89), and acknowledged and supported by
valid reasons by the States of Holland in a
Consultation issued to the States of Groningen on
Dec. 28th, 1759." Plaintiff's counsel replies (1)
that there is authority in Groenewegen de Leg, Ab.
(34. 38. 22 and 28) for the proposition that this
prohibition does not exist in the Roman-Dutch
law. The passage runs thus : " Imbert and others
affirm that those laws are abrogated by our
oustoms, but this is denied by Ac, Ac. What
then is to be said ? I, though I do not claim to be
more learned, will nevertheless, state freely what
I think, namely, that by our customs if any one
has obtained a cession of action upon payment, he
may sue not only for the amount of the money
paid by him together with interest thereon, but
may claim the whole of the debt, saving to the
debtor the right of retracting within a year from
the time of his having knowledge." But, inas-
much as Groenewegen was succeeded by Voet who
(18. 4. 18 and 18. 5. 20) recognises the validity in
Holland of the Lex Anastasiana % we cannot treat it
as now unknown to the Roman-Dutch law.
Plaintiff next contends (2) that the Le*
Anastasiana contains an exception in favour of a
cession which a creditor has reoeived in payment
of a pre-existing debt due to him, and that
plaintiff received cession of this acknowledgment
at least in part payment of a pre-existing debt as is
admitted in the oonsent-paper. Lastly, plaintiff
contends (3) that he did not buy the debt with the
object of vexing defendant in a lawsuit but for a
just and reasonable cause, giving not merely
money, but incurring great risk of losing what he
gave, owing to the uncertainty of recovering
anything on the obligation the validity of which
defendant has disputed, and whioh in any
361
circumstances was not payable for more than six
yean ; and that inasmuch as the declared object
of the Anastasian Law was only to prohibit
dabbling in lawsuits, and not forbid the parohase
of risky obligations such as the present, the
advantages of the purchase should go to the
plaintiff, who has risked a total loss ot what he
paid. The Lex Anastasiana is found in Code
4, 36, 22, which says : " As some persons coveting
the property and fortunes of others procure
cessions of actions belonging to others to be made
to themselves, and in this way attack divers
persons with the vexations of lawsuits, though it
is certain that those with whom the agreement
was originally made would wish rather to recover
their own under their undoubted obligations, than
to transfer them to others: now therefere we
declare by this law in future that such attempts be
prohibited, for there is no doubt that those who
wish to get such cessions are te be regarded as
(reJemptore*) speculators in the lawsuits of ethers,
but in such a way however that if a person has
obtained a cession for a money payment, he will be
allowed to recover only up to the amount which
has been paid, with interest ; with the exoeption
however of cessions which may be made between
co-heirs with respect to actions belonging to the
inheritance, and those whioh a creditor has
received in payment of his debt." Code 4, 36, 23,
says : " A most just constitution ss full of
humanity as benevolence was granted by
Anastaaius that no one should acquire another's
debt by cession made to him, and that he should
not recover more from the debtor than what he
has himself paid te the cedent, except in certain
cases which are specific in that constitution.
But since those who dabble in law-suits " (and
then proceeds to deal with pretended donations).
Code 4, 86, 24, adds : " Th > present constitution
refers to the constitution of Anastaaius enacted
with respect to cessions, and commanding that a
person who has given money in order to have
actions ceded to him, can recover nothing more on
such ceded actions than what he gave for them.
Bat since certain persons are excepted in that
constitution, it enacts that the same law shall
apply to those persons also, and that the exoeption
of that constitution is not to be observed, but that
the person who has given money will receive only
that together with interest and no more." The
Solicitor-General contends that C. 4, 86, 22, and
C 4, 36, 23, contain the law of Justinian whioh is
the only part of the Civil Law that has ever been
recognised in Holland, and that C. 4, 36, 24, is an
interpolation of something whioh was only
imported into what is now called the Code about
A.D. 828, it being in reality the Basilica, an
Eastern Code not brought into existence till about
that time, and that if we discard this C. 4, 36, 24,
tht previous sections import as an exception, a
creditor who, like the plaintiff, according to the
consent-paper, has received the cessions in pay-
ment of his debt, and that the fact that it is only
in part payment does not exclude him from the
benefi t of the exception. I am not aware however
that any authority supports the contention that
only what Justinian himself has embodied in the
Code can be regarded as Roman-Dutch Law. But
in the present cape it would seem, according to
Mackeldey, that the Basilica was actually portion
of the Code of Justinian, and that having been
omitted from previous collections it was sub-
sequently restored to the Code. It is clear,
moreover, that Voet, 18, 4, 18, does refer to all the
pections of the Code already mentioned, when he
says, " that the rule obtained by our oustoms,
that a debtor who is sued upon a ceded action
may require the plaintiff to swear at the very
commence' i ent of the action at what price the
debt was bought by him, in order that the debtor
may release himself by tendering that amount,
the benefit of the rest going to the debtor, as is
clear from the fact that all further action for
what the purchaser has given beyond this is
denied to both purchaser and seller ; nor will it be
enough in such case to swear to the price whioh
has been promised, but it must be sworn how
much has already and without fraud been paid or
given by the purchaser," quoting C. 4, 36, 24, and
Holl. Cons. 3, 2, 84, adding " and what has been
said of purchase and sale at plies also to giving in
payment, because in that also, as in the case of
sale, retraction is allowed, as was stated in the
preceding title; and giving in payment has the
same force and effect as a sale, the debt being
regarded as sold for the amount of the debt in
payment of whioh it has been ceded." If Voet be
correct, the Lex Anastasiana has been embodied in
the Roman-Dutch Law subject to no exception in
favour of a person who like the plaintiff has
received the cession wholly or in part in payment
of a pre-existing debt. And therefore on this
ground we cannot regard the Solicitor-General's
first contention as correct.
1 cannot however come to the conclusion that
the Lex Anastasiana, as set forth in Cod. 4, 36, 21
prohibited the present sale. The Lex begins by
describing what clats of rights of action and what
sorts of cessions are to be prohibited, namely,
undoubted obligations whioh covetous persons
attempt to obtain with the object of dabbling in
lawsuits, with the object of vexing debtors and
taking advantage of the circumstances of the
original creditor by getting from him what he
would rather not part with, and then having
stated this, the enacting part of the law does not
generally prohibit all cessions but only those of
the character described. It may be that what is
limited to certain sorts of purchases in this was
by the Roman-Dutch Law extended to all
362
purchases of rights of action, and it it said by Voet
(18, 4, 18) " that a rule has grown up in oar
practice that when a debtor is sued in pursuance
of a transferred right of action, he may require
the plaintiff to declare on oath for what price he
bought the claim, so that the debtor may discharge
himself by tendering the same amount." It is
also said that the general rule is subject only to
oertain exceptions, two of which are stated by
Van der Keessel and another added by Voet, and
that the general rule is only qualified by these
so-called exceptions. But seeing that Voet in
stating this rule refers to Hollandsche Consultatien,
Vol. 5, Con. 89, with apparent approval, and in
18, 4, 20, says'* that this right of tendering the
price, in other words, of retraction, is barred — in
the sale ef a number of rights of action
oolleotively, because the price for each oannot be
defined — notably where claims have been
purchased at a cheaper rate owing to the calamities
of war or other like troubles, so that the
purchaser runs a risk of total loss ; since it is fair
that the advantage derivable frem a thing should
go to the person who suffers the disadvantages, and
that the hope of gain should belong to him who
has had the fear of lots. Opinions have been
given to that effect by various Dutoh jurists. The
same view has been confirmed by a decree of the
States-General of Holland, and has been specially
applied to claims vested in the governing bodies of
provinces and municipalities which had been sold
at a sacrifice in critical times of war"; whether
we call this an exoeption or treat it as an
illustration of cessions under oiroumstarces to
which the prohibition does not apply, it seems to
me that the special circumstances in the present
case are euteide of the rule and come within the
meaning of the term alia incommoda, because the
risk run by plaintiff, added to the substantial
price he gave, shows that the executrix got full
value for her right of aoti »n, and even if we
consider the exception to apply te oases where the
purohaser runs the risk of a total loss, the
defendant's plea debars him at least from saying
that plaintiff did not run such risk. If we look at
the Hollandsche Consult at ten (Vol. 6, Con. 89), to
which Voet refers with approval, it appears that
the jurisconsults refer to Code 4, 85, 22 and 23, as
stating the law, and add : " As the above texts
only speak of the purchases of others' lawsuits
with the object of vexing and attacking, and as
the actions or loans which originally belonged to
citizens of other States, and are bow alleged to be-
long to citizens of this State, who have by cession
obtained right to the same during the war, it
oannot be said that the claimants have obtained
cession with the object of vexing or buying a
lawsuit, but rather that the same has taken place
for some just and reasonable cause in consider-
ation of the uncertainty connected with the
recovery and acquisition of the same, the result of
whioh depended absolutely on an uncertain event,
inasmuch as in the case of war the cessionaries)
might have recovered nothing, and might even
have lost the money paid, and inasmuch as they
have the risk of the said price +** " and add :
" No one in these troublous times would have
given more for them," and quote with approval an
opinion that the " Lex Anastasiana does not apply
if together with the debt and the action purchased
the risks and uncertainty of recovery are also
transferred to the purchaser, because such a
cession has a reasonable cause, and the lowne*s o
the price is compensated by the risk of the
uncertainty, nor can it be said to have been made
with the objeet of vexing or buying a lawsuit,"
and add "that Trent says that the constitution
ceases to apply if the ceded action would very
likely not have been worth more than what was
paid for it, and that consequently the ceded action
may be prosecuted for the full amount." This
reasoning approved by Voet gives rise to what is
called an exoeption to the rule, but which in
reality only shows that there are circumstances
under whioh cessions of action are not prohibited,
and that the law does not prohibit purchases for
whioh fair value is given in addition to risk of Iom
being incurred, provided the object be not to vex
the debtor with lawsuits. Such an object cannot
be said to exist here, and if there be a desire to
vex in this way, the plea of defendant rather
proves that vexation has been his object and not
plaintiff's, and as I think that the executrix got
fair value for what she sold, there is no
prohibition to sell, and plain' iff can recover the
whole debt, whioh defendant moreover cannot be
heard to say was an undoubted obligation. It also
appears to me doubtful whether the defendant
would have been entitled to claim the benefit of
rctractw without stepping into plaintiff's shoes or
at least offering to do so. This he has never done.
Voet in the passage quoted seems to imply that
there should be a tender of the price found to
have been paid for the debt preliminary to a
debtor succeeding to the rights against himself
under the obligations. As my brother judges
ooncur in reduoing the amount of the judgment to
£88 with interest from March 7th, 1883, that will
be the judgment of the Court, and in my opinion
that judgment ought to carry costs to date,
inasmuch as the argument here was a mere
continuation of the trial at Port Elizabeth, where
if judgment had been given it must have carried
costs. I need scarcely point out that if the
judgment of this Court be correct, it will be found
to be a very inconvenient one in a mercantile
community, and that inasmuch as creditors have
no longer the power over debtors which existed in
times past, some amendment of the law would be
desirable,
363
Mr. Justice Jones: In this case I vary mnoh
regret that I cannot concur in the judgment
delivered by the Judge President. The defendant
in my opinion, though he set up a plea in the
Supreme Court before the case was sent to the
Circuit Court at Port Elizabeth, to all intents and
purposes withdrew this plea before ooming into
the Circuit Court, and agreed to a certain state-
ment of facts, leaving merely a legal point to be
argued in this Court. I certainly understood that
the only case to be heard here was whether under
existing law the plaintiff could recover the whole
amount claimed by him, namely £100 and interest,
or the lesser sum which the plaintiff, as cessionary
of the debt, had given for the debt of the
defendant, namely £38 with interest from the
date at which this sum was paid by the plaintiff
to the estate of Landman. In fact the position in
the Circuit Court appeared to me to be that the
defendant was willing to confess judgment for the
smaller amount, but the plaintiff claimed a larger
sum. As a matter of fact, it appears now that he
never actually made a tender.
Under the Reman Law as it stood before the
end of the fifth century, there was no impediment
to the transfer of actions by cession except in the
case where the transfer was made to vex a debtor
with a more powerful creditor (see Hunter's
Roman Law, p. 448). This exception was
apparently introduced by the Emperors Arcadius
and Honorius at the end of the fourth century or
early in the fifth (Code 2, 14, 2).
During the reign of the Emperor Anastasius
(A.D. 491-518) a more effective remedy was
introduced, namely that which was stated by the
passage cited by the Solicitor-General from the
Code (4, 85, 22), and already read to-day by the
Judge-President. This constitution was specially
directed against speculators in lawsuits — against,
in other words, the purchase of debts due by
ethers for less than their nominal value. It
provided generally that when a person purchased
a debt for less than the amount of the debt, he
should only recover what he had paid for it ard
the legal interest ; but to this rule certain
exceptions were made, and among those exceptions
is one upon which the plaintiff now relies, namely
that of a creditor receiving a cession of action in
payment of a debt due from the cedent to himself.
This exception was considered applicable,
certainly, where a man borrowed a sum of money
and ceded in payment of it a debt due from
tnether person which was for a larger amount
(Maokeldey, Systema Juris Romani Hodie Usitati,
sec 388). When Justinian promulgated his
second Code (in A.D. 628) the constitution of
Anastasius was retained and modified. The
exception above referred to was apparently
retained also in the editions of the Code, more
•specially in the glossed editions which were
published before the time of Accursius (A.D*
1260), who collected the glossae of the previous
glossators and published what is generally known
as the Glossa Or dinar ia (as to which see
Mackeldey, Sec. 80). Many of the constitutions,
however, which were in the second Code of
Justinian, were by the negligence of transcribers
emitted in the later copies, but about the
sixteenth century were restored, chiefly owing to
the labours of Augustinus, Charonda, Cujacius,
and Curtius. These writers, for this purpose >
used the Basilic* ammg other sources of
information. When a Basilic is found in an
edition of the Code, it is consequently necessary to
inquire precisely the reason for its being there.
As a Basilic merely, it would not necessarily have
any authority, though many passages in the
Basilica are of the greatest use when referred te
'or the purpose of interpreting doubtful passages'
in the Cede, Digest and Institutes, and explaining
the historical development of the Roman Law in
the Eastern Empire during the three centuries
after the era of Justinian (as may easily be seen
upon reference to the works of Cujacius, who died
in 1590). It is quite true to say, as the Solicitor-
General did, that the Basilica qua Basilica have
not necessarily any authority, as Basil I. had no
power to legislate for the Western Roman Empire,
nor had his son Leo VI. (the Philosopher) nor
had Constantine VII. The Basilica merely
contained the law as it was in force in Greece in
887 A.D. and the jurisconsults who made the
collection consulted chiefly those commentaries on
Justinian's law which had been written in Greek,
but they undoubtedly also consulted the
constitutions which had been promulgated by
Justinian and his successors, and consequent^
they have often given us the constitutions which
were really in full force under Justinian and
formed portions of his legislation, though they
would have been lost to us if the edition of the
Basilica, published under Constantine VI., had not
come dewn to us. But it should be noted that
even Justinian's legislation did not bind the
Courts of the Netherlands by virtue of any
legislative power vested in him, but rather owing
to the gradual adoption of that law into the
common law of Holland as a supplement to fill up
the gaps left in their own customs and local
statutes. Now among the restored passages which
appear in the Code, as we now have it, there
appears (Code 4, 85, 24) the following : " Inveniens
autem in ea quasdam personas except as pracipit et in
iisdem personis hanc legem ohservari, neque
superioris legis except ione m/i, sed ut emptor pecunias
recipiat aid usuras" If this passage be law then
the exception in the Constitution of Anastasius,
which is relied upon by plaintiff, is swept awar.
Now it seems dear from Mackeldey that this
passage is taken from a Constitution of Justinian
364
(gee Mackeldey, sec 338, p. 247) of later date than
the Constitution (Code 4, 35, 23), and for its force
it is no sense dej ended upon the legislative power
"of Basil or his successors. "By a later con-
stitution of Justinian, the exceptions " (to which
Mackeldey had referred in the text and among
them that relied upon by the Solicitor-General)
"are repealed." Poster tore Justinian* con-
stitutione, haec quidem omnes exceptiones iterum
sublatcB sunt, ted hate conslitutio est restituta non
glossata " (Mackeldey, § 338, p. 348, note c). There
was a rule in the German Courts, though it
certainly has not been observed by the Dutch
Commentators, that " Quicquid glossa non agnoscit
illud nee agnoscit curia." If, however, the
exception relied upon by the Solicitor-General d : d
not exist in the Roman-Dutch Law, as enforced in
their Courts, this Court could hardly be able to
introduce it here simply upon the ground that the
Dutch Courts had recognised as having the foroe
of law an unglossed passage in the Code. Now it
is remarkable that the existence of this exception
is not admittted when stating the practice of the
Courts by the Roman-Dutch authorities which
have been cited, though it is mentioned as being
one in the Roman Law under the Constitution of
Anastasius. Groenewe gen would sweep away the
whole of the law if he could, and for that matter,
so would Bynkershoek and Pothier (see passages
referred to by the Judge-President in his
judgment). If we refer to Voet (18, 4, 18) where
he states the practice of the Court*, we find that
he only mentions this exception for the purpose of
stating that it does not exist. Van der Keessel
does not mention it. I can only think therefore
that they must have considered t he law contained
in Code 3, 35, 24, to be good law and recognised by
the Courts, though t happened to be law derived
through a restored unglossed passage from a
Constitution of Justinian which had come down to
them through the Basilica. But even if this be
not so, it seems from the special case befere us
that to all intents and purposes the price of the
£100 debt was fixed by agreement at £38, and that
in payment of a portion only of this amount a
debt which the plaintiff owed to the estate of
Landman was set off, and therefore the rule would
not apply. Returning however to the general
question, whether the modified Anastasian law
was applicable in Holland, Schorer says that the
right of retraction or " Naasting " was in vogue in
Holland from very early times, and he refers to a
charter of 1297, and from Grotius (3, '0, pa** i m)
the principle of retraction seems to have been
applied very generally in the Netherlands to
immovables as well as to rights of action. Grotius
(3, 16, 14), writing in A D. 1620, lays it down that
whenever a debt is sold to a third person, the
debtor may at any time (Groenewegen says within
a year, basing his opinion upon local laws of Delf
and Bhynland) upon receiving notice retract the
debt, or in other words step into the place of the
purchaser (om te treden in des hoopers plaats) as he
explains the doctrine. V9et lays down the law
clearly in 18, 4, 18. *« A rule has grown up," he
writes, "in our practice, that when a debter is
sued in pursuance of a transferred right of action,
he might require the plaintiff to declare on oath
for what price he bought the claim, so that the
debtor may discharge himself by tendering the
same amount, and that the debtor gains all the
difference between the amount and the sum
originally due is evident from the fact that
neither the purchaser nor the vendor is allowed an
action for anything beyond the price paid by the
latter. (Quod, utrimque turn emptor », turn venditori
actio xdtra id, quod emtor dedit denegata est.) And
it is not enough to declare on oath the price
promised ; be must declare the amount truly and
honestly paid or delivered (and here he refers to
the passage already referred to, derived from the
Basilica). And what has been said of sale applies
also, according to the better opinion, to delivery of
a specific thing by way of payment. (Et qua de
venditione dicta sunt, in datione in solutum etiam
obtinere verius est) since retraction is allowed in
that transaction as in sale, as was stated in the
preceding title, and since it is a substitute and
equivalent for a sale, and the claim is considered
to have been sold for a sum equivalent to the
amount of the debt in satisfaction of which it was
transferred * * * * (Sec. 19). "Where no
particular period is fixed by statute, it is enough
for the debtor to tender the same prioe as that
given by the cessionary as soon as he is sued for
payment." In the next note (Sec. 20) the
exceptions which the Dutoh Law allowed are
clearly stated : (a) " This right of offering or
retraction is destroyed if at the time of the sale an
opportunity of purchasing was offered to the
debtor for the same price and he declined to
purchase. (6) So also, if the sale be of a number
of rights of action collectively (actionum plurium
universitas) as when a merchant sells his entire
list of book-debts, or when many actions are
included in an inheritance which is sold ; since
some of the claims may be valuable and some less
valuable, and others absolutely worthless and bad,
it is impossible to determine precisely the price
paid for each claim nor how much consequently
should be paid upon retraction (Dutch Consult-
ations, 4 Con. 196, p. 353). (c) Nor is retraction
allowed when a debt is sold by public auction and
knocked down to the highest bidder, {d) Nor,
lastly, is the right admissible when rent charges
{rent en) and other claims have been pnrchased at a
cl eaper rate owing to the calamities of war and
other similar troubles, so that the purchaser runs
the risk of total loss ; since it is but just that the
advantage which can be derived from the thing
365
sold should go to the person who has the
disadvantage, and that the hope of gain should
belong to Lim who has the fear of loss. This
opinion, after it had been expressed by certain
jurisconsults, was confirmed by s decree of the
States of Holland, and it has been specially
applied to debts of the provinces and states, sold
in critical times during tear for a emaller sum than
their nominal value. (Dutch Consultations, 6 Con.
89.) In his Compendium Voet (stating the
practice) repeats the same opinion, again relying
upon Lex 24 ; but he draws a distinction between
debts due by the State, a municipality or a
provinoe, and those due by private individuals.
[Nam si nomen, quo respublica vel civ it as, aut
provincia obligata est distract urn sit, sive pluris sive
minor is quam erat in sorte debita, exigi potest totum
debit urn, cum in his apud nos negotiationem quandam
exerceri constet. Sed si privati debitor is nomen sit
venditum minor is quam erat debit urn emptor forte non
debit i integri ted tantum pretii soluti exactionem est
kabiturus conveuienter jure Romano, nisi debitor i
oblata sit actio t eodem pretio retrahenda, isque earn
obiatam retrahere recusaverit.] Now it may be
admitted at once that if the reasons advanced by
the jurisconsults to whom the Judge-President
his referred were strained to their fullest extent,
they would destroy the Lex Anastasiana
altogether, for it is difficult to imagine any case in
which credit is given to which a certain amount of
risk is not attached. But whatever the reasons
may have been which they advanced in the
troublous times of 1648, the Dutch lawyers of
later times apparently did not press them beyond
the case with which they were then dealing, and
they allowed the force of the law to continue in
practice at least as to private debts, as Voet
himself tells us.* It seems unnecessary for me to
refer again to the authorities cited at the Bar
from Sande, Van Leeuwen, Brunemann and
Pothier, as I find nothing in them to lead me to
suppose that Voet incorrectly stated the law as he
found it at the end of the seventeenth (1698)
century. A century later Van der Keessel
(Thesis 663), who professes " to touch upon such
points as had been omitted by Grotius for the sake
of conciseness, or had undergone alteration since
the publication of the work " (see preface, p. xxviii,
Lorenz'a Translation) " or had been the subject of
controversy ," again states the law as still in force,
and adds that the right was capable of being
• At the time these Jurisconsults gave their
opinion the public debt of the Provinces had reached
one hundred and fifty millions of florins, and it was
of the utmost importance that the borrowing power
of the State should in no sen»e be damaged by
anything which might affect the negotiability of
their public debts.
exercised even though the debtor was not ignorant
of the sale of the debt. He states also two
exceptions to the general rule (i't nihil amplius
accipiat quam tpse rero contractu persoloit). namely,
the case of a sale of the entire body of accounts,
and a sale of public Dutch securities. This is the
latest authority on the point. Now it is possible
that there may be other exceptions to the general
rule, for instance where a doubtful right of action
is sold, or a doubtful right of heirship, it being
understood that it is only a chance that is sold, the
vendor not even being answerable for the
existence of a debtor, provided he be acting in
good faith [see Voet 18, 4, 9, and Maokeldey, who
gives as one of the exceptions u Si nomen cessum
tempore cessionis facta infidum et incertum erat " ;
though he tells us in a foot-note that the exception
is not contained in the law itself, adding as a
reason for it however that a doubtful and
uncertain debt is not of the' same value as the
price name*!, and that therefore one who pays less
for a debt of the kind does not buy it for a smaller
price] ; bat upon this question the Court need
now express ne opinion, as the facts stated do not
fall within the limits of this supposed exception.
In my opinion the purchaser in the case before us
took the usual and ordinary risks which any and
every purchaser of a debt takes and no more, and
his case does not fall within any of the exceptions
existing in the Roman-Dutch Law, nor within the
reasoning of the Dutch jurists already cited by the
Judge-President. This was not a case of a
purchase of a debt during war, nor any similar
trouble, nor was this debt of such doubtful
character as to fall within the further possible
exceptions to which I have alluded It is un-
necessary f?r me to comment upon the policy of
this law. Much may be said both against it and
for it. It should not, however, be forgotten that
in contracting a debt, a not unimportant
consideration is the personality of the creditor,
and that the law as it stands does not prevent the
sale of debts, even for muoh less than their
nominal value, but merely prohibits the
underhand substitution of a new creditor for the
person with whom the contract was made without
first of all giving the debtor an opportunity of
releasing himself fiom his debt for the very price
at which his creditor is willing to dispose of his
debt to a third person. It does not prevent the
out and out donation of a debt, nor its sale for any
price, which the debtor refuses to pay to release
himself from it.
It has also the effect of preventing te a con-
siderable extent the trafficking in lawsuits.
However, these are matters for the Legislature to
consider and not for this Court, whioh has merely
to administer the law as it finds it. In my
opinion the plaintiff is only entitled to recover the
amount he paid for this debt, together with legal
366
interest upon the sum he paid from the date of
payment. As the defendant has not yet tendered
this amount te the plaintiff, together with costs up
to the date of tender, I am of opinion that he
should pay all costs of this action.
Mr. Justice Maasdorp: I concur with my
brother Jones in the conclusion he has arrived at
in this case ; and so thoroughly do I oonour also
in the reasons which he has advanced for his
oonolnsion, that I do not consider it necessary to
make any special statement.
Judgment was accordingly delivered for plaintiff
for £38, with interest at 6 per oent. from March
7, 1883, and cost of suits.
SUPREME COURT. °™. «• «*»«»•
It appeared from defendant's affidavit that he
had been arrested as he was on the point of
sailing this afternoon for England in the R.M.8.
" Norham Castle " at the suit of the plaintiffs lor
non-payment of the fallowing claims: £15 10s.,
hire of hones and vehicles ; £60, damages ftr
alleged misuse of same; £1 18s. 6d., costs of
telegraphing proceedings ; and £6 16s. 6d., further
oosts.
Defendant admitted his liability for £15 10s.,
but disputed the claim for damages.
The horses and vehicles had been hired in Port
Elizabeth, and before the defendant left that town
a summons issued out of the Eastern Districts
Court for £75 was served upon him.
Defendant signed a warrant to defend the case,
which was still pending, and handed it to Mr.
Chabaud, of Fort Elizabeth, his attorney, through
whom he also tendered £45, which tender, how-
WEDNESDAY, DECEMBER 16.
[Before the Chief Justice (Sir J. H. DE VlLLlERg,
K.C.M.G.), Mr. Justice Smith, and Mr.
Justice Buchanan.]
♦LYONS 6 SONS V. GAIS8AC.
Writ of arrest — Action pending — Appear-
ance entered — Writ discharged.
Sir T. Upingten, Q.C., appeared for the plain-
tiffs, and Mr. Molteno for the defendant.
Mr. Molteno moved, on behalf of defendant, for
discharge of a writ of arrest issued against him.
* This case was through an oversight omitted in
the report of the 16th Dec, at page 344.— Ed,
Mr. Molteno contended that under the circum-
stances disclosed in affidavit, and in sight of the
fact that the case was pending in the Eastern
Districts Court, the arrest of the defendant was
illegal and he was entitled to be discharged from
custody.
The Chief Justice said that in cases of this kind,
in which the liberty of the subject was at stake,
the Court would require very strong evidence that
a person in defendant's position was endeavouring
to defeat his creditors before it would confirm the
writ of arrest. No such evidence had been
adduced in the present case, on the contrary the
defendant had instructed his attorney to defend
the action pending against him, he had further
made a tender of £45 aooording to his affidavit and
under the cironmstances the Court was of opinion
that the defendant should be discharged from
custody.
Writ of arrest discharged with oosts.
DIGEST OF CASES.
•vol. I.
PAGE
Account — Action —Commission on sales-
Tender— Costa— Resid v. Abader ... 827
Account — Action for balanoe of — Summons
sufficiently specific — Exception — Appeal
— Case remitted — Zahn v. Du Preez ... 114
Act 20 of 1856, Sec. 3d, Schedule B— Notice
of appeal — Refusal of Magistrate to
transmit record to Registrar— Smith A
Carter v . Van Staden ex parte Van Staden 326
Act 20 of 1861, Sec. 10— Transmitting false
telegrams — Telegraph regulations — Locus
poenUentiae — Conviction quashed —
Regina v. Rnssonw ... ... ... 118
Act 17 of 1867— Evidence sufficient to nphold
conviction — Regina v. Arendse ... 97
AK 18 of 1873 — Conviction under wrong
section — Regina v. Plessis ... ... 102
Act 18 of 1873, Sec. 2 — Person charged under
wrong section — Conviotion quashed—
Regina v. Briel ... ... ... 23
Act 28 of 1879, Sec 9— Non-compliance with
terms of section — Conviction quashed —
Regina v. Maseri A Ramsitsani ... 118
Act 28 of 1881 — Application for registration
of title — Prescription — Rule niti dis-
charged— Petition of N P. Uys ... 189
Act 27 of 1882, Sec 9— Regina v. Guysman ... 79
Act 27 of 1882, Sec 10— Contravention-
Conviction— Special Justice of the Peace
— Review — Regina v. Visser 860
Act 28 of 1883 — Contravention— Conviction —
Evidence — Appeal — Regina v. Stodard... 825
Act 28 of 1883— Sees. 73 and 76— Contraven-
tion — Conviotion — Pine — Review — 1 90th
rule of Court — Exception
Application for leave to bring proceedings
under review by reason of their gross
irregularity refused on the grounds inter
alia that the exception should have been
taken in limine
Petition of Thomas Sampson ... ... 184
Act 18 of 1888, See. 2— Regina v. Fillis ... 79
PAGE
Aotien— Postponement of in consequence of
unavoidable absence of Defendant — Pay-
ment of tender — Preiss v. Gluokman ... 67
Agency — Commission — Tender— Costs— Gar-
diner v. Teague A Gray 326
Alimony — Action for — Topp v. Topp ... 215
Ante-nuptial contract — Leave given to the
trustee to raise money on mortgage of
the settled land to pay off claims in
husband's insolvent estate
In re the ante-nuptial contract of Deneya and
Baker ... ... ... ... ]83
Ante-nnptial contraot — Leave given to re-
gister although contract had not been
tendered for registration within pre-
scribed period— Petition of J. J. du Toit 153
Ante-nuptial contract — Settled land— Sale-
Leave given to vary investment
In re the ante-nuptial contract of Wright
and Drennan... ... ... ... 178
Appeal— Costs— Act 5 of 1879 -Sec. 14
Marais v. Langford ... ... ... 234
Appeal from sentence of Resident Magistrate
—Exception— Act 21 of 1876, Sec. 4—
Non-compliance with terms of section —
Appeal dismissed— Regina v. Prince ... 199
Appeal — Extension of time — Leave— Act 5
of 1879, Sec 11— Arrest of person ad
fundandam jurudictionem
L. A S. A. Exploration Co. (Limited), v.
Cathypadyachy m
Arbitration— Award— Rule of Court— Taxa-
tion — Humphries v. Spencer ... ... 170
Arbitration— Award made rule of Court-
Taylor A Symonds v. Schunke ...
Westhuysen v. Heyns and others 88-86
Arbitration— Award— Failure to comply with
terms— Contempt of Court— Application
for personal attachment — Taylor A
Symonds v. Schunke ... , v ... 886
Arrest, writ of— Confirmation— Harris A Co.
v. Grodner— Rigal v, Grodner „\ 103
11
DIGEST OP CASES.
PAGE
Von Below v. Tiengo— Duncan v. Tiengo ... 124
Articled Clerk — Incorporated Law Society —
Act 27 of 1883, Sec. 14 — Non-compliance
with terms of section
Petition of A. J. McLeod... ... ... 274
Assignment for benefit of creditors — In re
Sir T. Scanlen's estate ... ... 347
Attachment of property ad fundandam juris-
dictionem — Issue of summons before rule
nisi had been granted — Rule discharged —
Taylor 6 Symonds v. Schunke ... ... 3
Attachment ad fundandam jurisdictionem of
heir's interest under will — In the estate
of the late J. Quin ... ... ... 21
Attachment of debt — Askew v. M oiler ... 24
Attachment of funds in hands of Company ad
fundandam jurisdictionem — Cessionary —
Binwald v. The German West African
Co. (5 Juta, 86) considered and followed —
Mackie, Dunn & Co. v. The Potohefstroom
Exchange Co. (Limited) ... ... 56
Attachment of funds in hands of agent —
Proper form of process is to sue out
execution — Cape of Good Hope Bank (in
liquidation) v. Vowell ... ... ... 2
Attachment — Judgment — Rule 329. Applica-
tion for an order directing the Sheriff of
the Colony to attach account-books and
collect outstanding debts refused, there
being no precedent for such a procedure
— Louw v. Theron ... ... ... 81
Attachment ad fundandam jurisdictionem —
Standard Bank, Petition of ... ... 86
Attachment— Illegal — Messenger of Court—
Act 20 of 1856, Sec. 53— Magistrates'
Court Regulations, Rule 58— Interpleader
— Action — Appeal — Myekulu v. Simkins 115
Attachment of portion of inheritance to satisfy
judgment debt — Brunn«r v. De Villiers 111
Attachment — Postal drafts — Rule nisi oper-
ating as provisional attachment — Von
Below v. Tiengo— Duncan v. Tiengo ... 118
Attachment of proceeds of sale in satisfaction
of judgment — Liebenberg v. Van der
Westhuysen ... ... ... ... 56
Bail bond — 73rd Rule of C*>urt— Indictment
— Notice of trial— Sufficient service —
Recognizance estreated — Writ of exe-
cution— Kuun v. The Attorney-General 365
Balance of account — Aotion — Disputed items.
— Bevern's Executors v. Ely ... ... 82
Bill of Exchange — Interdict — Attachment —
Teengs v. Garlick ... ... ... 132
Bond— Sureties -Liability— Ord. 104, Sees.
21, 27, 33— Will— Omission to appoint
executors — Executors dative — Breach of
trust— Master of High Court— Negli-
genoe— " Burden of proof "—Interest—
Costs— Appeal,
PAGE
Per de Villiers, C.J. — In the ordinary case in
which a principal debtor acknowledge ^
himself to be indebted in a certain sum for
money advanced, or to be advanced, and
renounces the exception non numerous
pecunue, this Court would hold, as it held
in De Waal v. Van Zyl (3 Juta, 188), that
the creditor is entitled to provisional sen-
tence against the sureties under the bond
No proof aliunde would be required that the
. amount is due in the absence of prima facie
evidence that it is not due wholly or in part
In every case, however, the document sued upon
must speak for itself
Wessel's Executors A Bisset v. The Master,
High Court ... ... ... ... 311
Building Contract — Special Agreement —
Architect's certificates — Condition pre-
cedent — Appropriation of payments
Scott v. Sytner ... ... ... ... 860
Cape Town Council— Act 44 of 1882— Muni-
cipal Regulations — Regulation 205 —
" Obstructions and projections" — Ultra
vires — Property in street pavements —
Interdict — Rule nisi discharged — Lawley
6 Bruce v. The Cape Town Council ... 302
Cattle Diseases Act— No. 2 of 1881— Con-
travention— Hones — Glanders — Investi
gation Board — Isolation — Destruction
If the persons appointed under the Sec. 2 of
the Act are of opinion that animals should
be destroyed they may have them
destroyed themselves, or they may isolate
them, but they cannot call upon the
owner to destroy or isolate — Regina v.
Gilliome, Sen... ... ... ... 155
Cause — Application to remove trial from
Supreme Court to High Court — Dominus
litis — Right to select his own tribunal—
Coussmaker v. G.W. Board of tixecutors 204
Clerk articled to Attorney allowed to continue
his articles notwithstanding an interval of
non service for twelve months. In re
Gibbon ... ... ... ... M
Clerk articled — Application for admission as
an Attorney refused,— applicant not
having passed the whole of his time under
the immediate supervision of his prin-
cipal— In re Soheepers ... ... ... 68
Collation — Advancement — Promissory Note
— Prescription — Legitimate portion — Act
28 of 1874, Sec. 2
Although the right to the legitimate portion
has been done away with, the rule still
remains in force that advancements made
by a parent and debts owing to him but
not satisfied during his lifetime must, in
the absence of any indication of a wish
on his part to the contrary, be oollated
DIGEST OF CASES.
Ill
PAGE
by hu children 10 advanced or indebted
* the purpose of ascertaining their
■hares of inheritance
Jooste v. Kok ... ... ... ... 251
Commission — Sale of horse — Action— Deci-
sion of Resident Magistrate — Appeal —
Lischtly v. Strangmann ... ... 158
Company — Bank in liquidation — Compro-
mises—The Cape of Good Hope Bank (in
liquidation) ... ... ... ... 18
Company — Bank in liquidation — Compromises
— Confirmation postponed sine die — The
Cape of Good Hope Bank (in liquida-
llOD^ ... ... ... ... ... £
Company — Bank in liquidation— Con tribu-
taries — Application to vary list — The Cape
of Good Hope Bank (in liquidation) v.
Estate of Van Lier ... 18-78
Company — Bank in liquidation— Inspection of
books— The Paarl Bank (in liquidation) 12
Company — Bank in liquidation — Shareholders
past and present — Application to place
past shareholders on list of Contributories
refused on the grounds, inter alia, that the
liquidators had failed to show that any of
the debts owing by the Bank had been
incurred before such past shareholders
had transferred their shares — The Paarl
Bank (in liquidation) ... ... ... 85
Company — Bank in liquidation — Call on
shares— Writ of execution— Payment by
executors de bonis propriis — Bights of
executors against heirs and legatees —
The Cape of Good Hope Bank (in liqui-
dation) v. The South African Association 78
Company — Bank in liquidation -Contract
entered into between liquidators and
debtor of Bank approved Of by Court -
The Cape of Good Hope Bank (in liqui-
dation) in re Coroners contract ... ... 50
Company — Bank in liquidation — Order in
terms of liquidators' report — Dividend —
Remuneration of liquidators— The Cape
of Good Hope Bank (in liquidation) ... 50
Company — Bank in liquidation— Contribu-
tories— Execution— The Paarl Bank (in
liquidation) v. Hugo 6 others 71
Company — Bank in liquidation — Compromise
— Former shareholders — Contributories—
Bxcussion— Act 28 of 1861
Where liquidators have entered into a com
promise with a shareholder and have not
availed themselves of the powers con-
ferred upon them by Act 23 of 1861, Sec,
13, they cannot fall back upon former
shareholders who had bona fide transferred
their shares to the person with whom the
liquidators have compromised
Qucere: I Whether past shareholders can be
PAGE
placed upon the list of contributories
before all the assets of the bank have
been realised — The Cape of Good Hope
Bank (in liquidation) v. Bast, Runoiman
& others ... ... ... ...73-7
Company — Bank in liquidation — Contribu-
tories- Deceased shareholder — Mutua
will — Partnership — Condictio indebiti
It is not safe er proper for an executrix to
pay to herself as surviving spouse any
portion of the common estate until her
husband's shares in an unlimited banking
company have been transferred, or the
liability entailed by their retention has
been ascertained and provided for — The
Union Bank (in liquidation) in re the
Estate of the late F. W. Hofmeyr ... 64
Company— Bank in liquidation— Contribu-
tories — Executors — Payment de bonis pro-
pria — The Union Bank (in liquidation) v.
Watson's Heirs ... ... ... 72
Company — Bank in liquidation — Execution in
respect of calls due upon shares — The
Union Bank (in liquidation) v. Brentnall 76
Company — Bank in liquidation — Winding-up
Act — Absconding contributory — Powers
of liquidators in such cases — The Paarl
Bank (in liquidation) ... .„ ... 81
Company — Bank in liquidation — Private
liquidation
Application for an order fixing the time within
which claims should be proved, refused on
the grounds that as the liquidation was a
private one the Court had no power until
the parties concerned had put themselves
under the operation of the Winding-up
Act— The Wellington Bank (in liquida-
tion)... ... ... ... ... 81
Company— Bank in liquidation — Authority
given liquidators to accept certain assign-
ments in discharge of assignors' in-
debtedness to the bank. The Cape of
Good Hope Bank (in liquidation) ... 82
Company — Bank in liquidation — Confirma-
tion of accounts — Remuneration of
Provisional Liquidators — The Cape of
Good Hope Bank (in liquidation) ... 155
Company — Bank in liquidaton — Compromises
— Sanotion of Court— Sequestration
Compromises entered between the liquidators
of a company placed under the operation
of the Winding-up Act and a debtor are
merely provisional and are not binding
agreements until the sanction of the Court
has been obtained— The Cape of Good
Hope Bank (in liquidation) v. Deneys ... 82
Company— Bank in liquidation— Destruction
of books and documents — The Cape of
Good Hope Bank (in liquidation) ... 86
iv
DIGEST OF CASES;
PAGE
Company — Bank in liquidation — Writ of
execution issued in respect of calls due
on shares — The Cape of Good Hope Bank
(in liquidation) v. Pilkington ... ... 97
Company — Bank in liquidation — Compromises
— The Cape of Good Hope Bank (in
liquidation) ... ... ... 99-121
The Union Bank (in liquidation) ... ... 101
Company — Bank in liquidation — Contributo-
ries — Executrix — Heirs — Liquidators —
Locus standi — Amendment of Declaration
— Prescription — Costs — The Paarl Bank
(in liquidation) v. The Executrix 6 Heirs
of Roux ... ... ... ... 136
Company — Bank in liquidation — Act 23 of
1 86 1 — Sec. 13 — Execution — Insolvent
shareholder — Contributories — Past share-
holders — The Cape of Good Hope Bank
(in liquidation) v. Twentyman — The
Cape of Good Hope Bank (in liquidation)
v. Whitton ... ... ... 163-154
Company— Bank in liquidation— Act 23 of 1861,
Sees. 11, 12, 13— Act 12 of 1868, Sec. 22
— Contributories — Exoussion — Insolvent
shareholders — Liability of past sharehol-
ders — Deed of Settlement — Indemnity
The Cape of G. H. Bank (in liquidation) v.
Stamper and others ... ... ... 173
Company — Bank in liquidation — Act 12 of
1868, Sec. 21— Contributory— Set off-
Execution— The Paarl Bank (in liquida-
tion) v. Wioht ... ... ... 183
Company — Bank in liquidation — Present
shareholders — Compromises — Liability
of past shareholders
A compromise with a present shareholder
releases the former holder of the par-
ticular shares held by the present holder,
but it does not release persons who held
shares other than those in respect of
which there has been a compromise
tn re The Paarl Bank (in liquidation) ... 216
Company—Bank in liquidation — Unlimited
liability — Contributories — Calls —
Deceased shareholder — Executors —
Negligence — Liability of heirs — Ordi-
nance No. 104, Sec. 32
Watson's Executors v. Watson's Heirs ... 244
Company — Bank in liquidation — Deceased
shareholder — Contributories — Liability
of executors— Payment of calls de bonis
propriis — Condictio indebiti — Ordinance
No. 104, Sees. 30 and 82 — Taylor v.
Taylor (L.B. 10 Eq. 477) discussed—
The Union Bank (in liquidation) v.
Watson's Executors ... ... ... 269
Company — Agreement to purchase property —
Resident Director — Power to bind Comp-
any — Servitudes
PAGI
Muller's Executors v. The Argus Co. ... 205
Company — Bank in liquidation — Shares —
Contributory — Life policies — Cession
with alleged object of defeating creditors
— Notice — Attachment — Sale— Rule nisi
made absolute — The Cape of Good Hope
(in liquidation) v. Belson ... ... 291
Company in liquidation — Sale of company's
assets — Confirmation — Proceeds to be
subject to Orders of Supreme Court —
Cape Central Railways (in liquidation) 84-110
Company in liquidation — Judgment debt —
Priority— Costs — In re the Omaruru Gold
Mining Co. (Limited)... ... ... 119
Company in liquidation — Proof of debts
allowed notwithstanding that period for
proof had expired — In re the Zeutpans-
berg Palmietfontein Estate Company ... Ill
Company in liquidation — Application for
appointment of two liquidators (in addi-
tion to one already appointed) refused —
In re the Capo Stock Farming Co. (in
liquidation) ... ... ... ... 289
Com pany in liquidation — Shares — Calls —
Locus standi of liquidators appointed at a
meeting of shareholders called for the
transaction of general business — Ex-
ception—Appeal — Aling v. The Bellevue
Syndicate ... ... ... ... 826
Company — Statutory rights — Threatened
expropriation of land — Interdict — Arbi-
tration
Cape Town Council v. The M. & S. P. Rail-
way Co. ... ... ... ... 249
Company — Winding-up — Appointment of
liquidators — In re the Damaraland Mining
and Exploration Co. (Limited) ... 78
Contraot — Agreement with employe' — Con-
struction — " Absent from whatever cause "
—Thome & Stnttaford v. McNally ... 48
Contract — Breach — Damages — Prospecting
rights in territory of independent chief-
Groom & White v. The Beehuanaland
Exploration Co. ... ... ...4046
Contract — Collateral agreement — Novation-
Appeal — Costs
Where on appeal the judgment of the Court
below was upheld but on different
grounds to those upon which the judg-
ment of the Lower Court was founded
Held (Smith, J., dissenting) that the appeal
should be dismissed with costs
McKay v. De Beers Mining Co. ... ... 817
Contract in restraint of trade — Construction
— Breach— Good-will of business— Ces-
sion — Alleged misrepresentation — Dam-
ages — Interdiot — Dunman v. Trautmann 306
Contraot with Cape Government — Deduc-
tions from moneys payable under contract
DIGEST OF CASES,
PAGE
lodged in bank in name of Agent-General
as security for due fulfilment of contract
— Equitable assignment — Insolvency of
assignors — Notice of assignment — Refusal
to recognise same — Transfer of funds to
Col< >nial Treasury — Cession — Payment
by Colonial Government to cessionaries —
Judicature Act of 1873—86 and 37 Vic.
cap 66, Sec. 26 (6) — Case governed by
English Law
The law of this colony requires no particular
form of words for the purpose of effecting
a complete cession of action. What it
does require is that the intention to effect
the cession should be clear and beyond
doubt " Fick v. Bierman " (2 Juta, 26),
and that no further Act should be
necessary to complete the cession, " Mills
v. Benjamin" (Buch., 1876, 115)
If there have been two cessions and the first
cession was completed before the execu-
tion of the second one the first must
prevail
Whatever the rules of the English common
law may have been before 1878, it was a
settled rule of the Courts of Equity that
anything written, said, or done in pursu-
ance of an agreement and for valuable
consideration, or in consideration of an
antecedent debt, to place a chose in action
or fund out of the control of the owner,
and appropriate it in favour of another
person amounted to an equitable assign-
ment. The substance of the transaction
was looked to, and if the intention of the
parties to transfer the chose in action or
fund to the use of the assignee was
manifest, the fact that somewhat in-
appropriate language was used for the
purpose would not be allowed to defeat
their intention. Notice, however, to the
debtor or holder of the fund was essential
to the completion of the assignment
Wright 6 Co. v. The Colonial Government... 216
Contract — Specific performance — "Remaining
extent" — Construction — Worcester Muni-
cipality v. The Colonial Government ... 126
Costs — Counsels' Fees — Taxation — Review —
Cases—Walker v. The Cape Central
Railways, in re — TeengB v. Garlick, in re 162-156
Costs — Demand — Rule 812 — Practice — Ap-
peal — Jones v. Cauvin & Co. ... ... 168
Costs — Nuisance — Provisional interdict
Where on an application for an interdict
restraining the continuance of a nuisance
the applicants had shown sufficient cause
for the granting of a provisional interdict,
but the matter was ordered to stand over,
and a further application was sub-
PAOB
sequently made but withdrawn, on proof
that the nuisance had been abated, costs
were given the applicants on both motions
Claremont and other Municipalities v.
Ohlsson's Cape Breweries ... ... 196
Costs— Security for — 8th and 14th Rules of
Court— Witham v. Venables (1 Menz., 291)
as explained by Lumsden v. The Kaffra-
rian Bank (8 Juta, 866), approved
A non-resident plaintiff who owns immovable
property in the Colony the value of
which after deduction of any mortgage
debt* due thereon would suffice to pay the
probable costs of the action is relieved
from giving security for such costs —
Where however he is defendant in re-
convention he is obliged to give security
to perform the judgment of the Court
{cautio judicatum solvi) — Taylor 6
Symonds v. Schunke ... ... ... 14
Costs — Taxation — Decision of Taxing Master
npheld
In re Lawrence v. Ward 6 Weasels ... 214
Costs — Taxed of motion in High Court of
Jnstioe — Provisional sentence
Where a person brings two actions and is un-
successful in the first he must pay the
costs of the unsuccessful action before he
will be allowed to proceed with his
second action — Cape Central Railways v.
w auter ... ... ... ... to
Criminal Law — " Attempting to commit
theft by false pretences " — Indictment —
Aot 8 of 1861, Sec. 7— Point reserved-
Conviction upheld
Regina v. Adelburg ... ... ... 191
Criminal Procedure — Theft by embezzlement
— Case remitted — Irregularity — Prisoner
not served with fresh summons — Refusal
of prisoner to plead — Conviction —
Sentence — Appeal — Regina v. Meiring... 226
Curator — A curator of the estate of a person
of alleged defective mind will not be
appointed until a summons has in the
ordinary course been served on such
person and until he or his curator ad
litem has failed to show cause— The
Petition of Eleanor Hyland ... ... 80
Curator ad litem — Minors
In an action for damages about to be brought
against executors testamentary for negli-
genoe in realising the landed property of
the estate the Court refused to put
minors to the expense of a curator ad
litem where the major children were in a
position to bring the action and at the
same time protect the interests of the
minors — In the estate of the late J. P.
jl iran ... ... ... - . « vo
VI
DIGEST OF CASES.
PAGE
Damages — Action for — Alleged partnership
Schakofsco v. Van Noorden ... ... 285
Debt — Acknowledgment of payable at bight
— Provisional sentence — Liebenberg v.
Westhuysen ... ... ... ... 102
Debt — Action for — Pleadings — 6th rule of
Court — Exceptions — Curtis v. Day ... 208
Debt — Action for— Alleged breach of contract
— Quarrying operations
Peters v. Skead, Cowling & Co. ... ... 210
Debt — Action for — Exception to Magistrate's
jurisdiction— Reduction of counter claim
— Appeal
Armour v. Murray & St. Leger ... ... 256
Debt —Judgment — Stay of execution
Refusal of Magistrate to take evidence as to
ability of defendants to pay more than
amount tendered — Appeal — Judgment
amended by striking out stay of exe-
cution — Leave granted to respondents to
produce further evidence — Heydenryoh
v. Solomon <fe McLoughlin ... ... 67
Debts due to Insolvent Estate— Purchase of
right to recover same — Partnership —
Final statement of accounts — Heyden-
ryoh v. Langermann ... ... ... 67
Declaration of rights— Private railway com-
pany in liquidation — Director — Agent —
Contractor — Shares — Debentures — Pre-
ference — Registration — Accounts — Dam-
ages — Costs — Remuneration of Jury —
Walker v. The Cape Central Railways
(in liquidation) ... ... ... 86
Deed of Transfer — Registration of ordered,
although a rule established in the Deeds
Office had not been complied with —
Atkinson v. The Registrar of Deeds ... 17
Deed of Transfer— Amendment of
Where curators had purchased land and passed
a bond in their individual names and not in
their oapaoity as curators the Court
directed the necessary amendment to be
made— In the estate of the late W. M.
Martin ... ... ..» ... 79
Deed of Transfer — Correction of — Petition
of D. H. Olivier & others ... ... 86
Deed of Transfer— Authority given Re-
gistrar of Deeds to cancel errors in
same — Petition of M. C. J. Rensburg ... 166
Deeds Examiners— Appointment under Act
19 of 1891 ... ... ... ... 257
Defamation of character — Action for
damages — Exception to declaration as
disclosing no cause of action
Cilliers v. Pienaar and wife ... ... 194
De lunatico inquirendo — Hyland v. Hyland ... 81
De lunatico inquirendo — Parker v. Hopkins40-49-76
De lunatico inquirendo — The Master v. Bux-
man ... ... ... .«* ... 140
PAGE
De lunatico inquirendo— Act 20 of 1879 —
Illegal removal and detention of alleged
lunatic — Locus standi of plaintiffs — In re
Mary Arthur... ... ... ... 130
De lunatico inquirendo— Funds in possession of
curator bonis — Disposal of — In re Hyland 179
De lunatico inquirendo— Beckham v. Beckham 189
De lunatico inquirendo— Shawe v. Honey-
borne ... ... ... ... 295
Diamond — Right to possession — Action for
recovery — Mathew v. Pentz ... ... 40
Diamondif erous farm — Use — Agreement —
Refusal of purchase — Cession — Assigns —
Promissory note — Cancellation of Agree-
ment — Exceptions — Coronel v. Ward 6
Wes«els— Lawrence v. Ward & Weasels 184-159
Diamondiferons farm — Right to prospect and
develop — Agreement — Cession — Re-
cession — Rights and obligations of cedent
Imroth v Ward ... ... ... ... 200
Diamond-mine — Trespass — Act 19 of 1888,
Sec. 76 — Statutory rights of owner-
Interdict — Appeal — Wilson & Hall v.
Weasels ... ... ... ... 107
Diamond Trade Act No. 48 of 1882— Contra-
vention— Conviction — Evidence of trap-
Credibility — Appeal
Regina v. Blumenthal ... ... ... 268
Divisional Council election — Ordinance 40 of
1889, Sees. 18 and 269— Rates— Right of
voting — Owner and occupier — De Klerk
v. Marais ... ... ... ... 138
Divorce — Damages — Assault — Claim in re-
convention — Oliver v. Oliver and Peokover 61
Divorce — Damages — Unstamped affidavits
allowed to be read
Application to make absolute rule nisi permitt-
ing applicant to sue in forma pauperis
refused and rule discharged where it
appeared from affidavit that applicant had
realised joint estate and remained in pos-
session of proceeds — Levatte v. Levatte
& Henderson ... ... ... ... 76
Divorce — Notice of trial — In divorce oases
the defendant should have actual notice
of the date of trial— Niehaus v. Niehaus 188
Edictal Citation — Leave given to sue by —
Petition of M. Mantle ... ... 173
Groenewald's Executrix v. Beneke... ... 182
Petition of G. Gladstone ... ... ... 85
Evidence — Commission de bene esse — Teengt
v. Garlick ... .. ... ... 84
Wilson v. Wilson & Minnaar ... ... 101
Topp v. Topp ... ... ... ... 108
Executor — Failure of duty — Action to frame
accounts — Damages — Costs de (/bonis pro-
priis— 'Quin's Executor v. Quin ... 382
Farms — Subdivision and transfer of — In the
estate of the late J. B. van Zyl ... 81
DIGE8T OF CASKS.
Vll
PAGE
The petition of C. Venter ... ... ... 81
Fraud and Misrepresentation — Principal and
Agent — Principal's authority exceeded by
agent — Postponement owing to absence of
important witness — Wright 6 Williams... 8 5-87
Funds belonging to person reputed to be dead
in the hands of Trust Co. — Application
for payment of
The proper course is to appoint an executor
and administer the estate as of a deceased
person — In re Nelson ... ... ... 8
Funds in hands of plaintiff's attorneys —
Application by defendant (wife of plain-
tiff) for a portion of funds to enable her
to prepare defence granted — Petition of
M. A Hatch ... ... ... ... 195
Qoods in transitu — Attachment ad fundandam
jurisdictionem
lu re F. C. Bell ... ... ... ... 241
Goods— Purchase— Repudiation by buyer —
Hnlbert v. Caporn & Marriott ... ... 60
Goods sold and delivered — Action — Promis-
sory note — Ordinanoe 6 of 1848, Sec. 19 —
Malicious sequestration of estate — Cross-
action — Damages — Stegmann v. Cohen
and Cohen v. Stegmann ... ... 149
Guano Islands — Right of landing — Disturb-
ance of birds — Salvage —Interdict
Section 446 of the Merchants' Shipping Act
of 1854 (17 and 18 Vic. cap 104) has no .
application in this Colony, and the effect
of the General Law Amendment Act of
1879 was not to introduce that section
Anderson & Murison v. The Col. Government 269
Guardians' Fund — Minors— Capital — Interest
— In re the Minors Bussouw ... ... 80
Guardians' Fund— Minors — In re the Minor
.Hodges ... ... ... ... oO
Imauxn or Mahomedan priest Interference
with in performance of his duty in the
mosque by rival priest— Possession-
Interdict -Gasiep v. Salie and another ... 147
Incest — A man who marries or has carnal
knowledge of his illegitimate daughter
commits the crime of incest — Regina v.
Arends ... ... ... ... 114
Insolvency - Appointment of new trustee for
specific purpose— In the Insolvent Estate
of Aokermann... ... ... ... 59
Insolvency — Provisional Trustee — Application
for appointment of co-trustee
Where the Court has appointed a provisional
trustee the appointment will not be set
aside unless at a meeting of creditors one
or more trustees are elected — In the In-
solvent Estate of C. J. Viljoen ... ... 59
Insolvency — Transfer of shares by insolvent
— Application to take evidence on commis-
sion— Jn the Insolvent Estate of H. Heath 71
PAGE
Insolvency — Sequestration of estate — Pro-
visional order fer set aside on want ef
proof of insolvency — Aot 88 of 1884 —
M oiler v Askew ... ... ... 11
Insolvency — Authority given to liquidators
of bank to sign consent in terms of
Ordinance 6 of 1843, Sec. 117— In the
insolvent estate of F. P. J. van Zyl ... 81
Insolvency — Securities — Ordinance 6 of 1848,
Sec 80 — Where a petitioning creditor
had omitted to put a value on securities
in his possession the Court refused to
make an order for oompulsory sequestra-
tion — Stegmann v. Cohen ... ... 82
Insolvency — Election of new trustee — Prac-
tice — In the insolvent estate of D. J.
Conradie ... ... ... ... 96
Insolvency — Curator bonis — Where a provi-
sional order for sequestration had been
granted and a curator bonis appointed,
the Court refused to confer upon the
curator bonis the powers of a provisional
trustee pending the provisional order
being made final — The Cape of Good
Hope Bank (in liquidation) in re
Arnoltz's estate ... ... ... 99
Insolvency — Ordinance 6 of 1843, Sees. 48 and
49 — Leases — Act 19 of 1864— Cession —
Locus standi of insolvent — Exception —
Amendment of Declaration — Brown &
Bate v. Green ... ... ... 125
Insolvent — Ordinance 6 of 1843, Sec. 19 —
Provisional order for sequestration —
Petition unfounded, vexatious, or mali-
cious — Principal and agent — Malice —
Action for damages — Tender 1 — Costs —
Askew v. Moller ... ... ... 128
Insolvency — Trustee — Farms — Title deeds —
Mutual will — Prae-legacy — Vested in-
terests of heirs — In the insolvent estate
of C. J. Viljoen ... ... ... 164
Insolvency — Application for compulsory
sequestration — Act 38 of 1884— Sec. 3 —
Notice of intention to surrender — Sched-
ules not filed — Mistake — Locus poenitentia
— Provisional order discharged
Fletcher & Co. v. Le Sueur ... ... 203
Insolvency — Trustee — Joint will — Adiation
— Life interest — Property registered in
name of insolvent — Rights of heirs —
Harris v. Buissinne's Trustees (2 Menz.,
105) affirmed
Viljoen's Heirs v. Viljoen's Trustee
(In re the Insovent Estate of C. J. Viljoen) 213
Insolvency — Ordinance No. 6 of 1843, Sec.
49 — Written permission given Insolvent
to trade in his own name and for his own
benefit— Property acquired subsequent
to surrender and before filing liquidation
Vlll
DIGEST OF CASES.
PAGE
account— Fire policy — Cession — Warner's
Assignees v. Warner's Trustees (4 Juta,
227) commented upon and distinguished
In the Insolvent Estate of Joseph Grady ... 229
Insolvency — Ordinance 6 of 1848, Sec. 28 —
Set off— Leave given to amend proof of
debt — In the Insolvent Estate of Pilgrim 287
Insolvency — Ordinance 6 of 1848, Sec. 84-
Aot 88 of 1884, Sec. 8, Contemplation of
sequestration— Undue preference — Trans-
action in the ordinary course of business
— Collusion — Forfeiture — Van Renen's
Trustee v. Abel ... ... ... 829
Insolvency — Sale of shares— Transfer — Non-
registration — Rights of vendee — Harris
v. Buissinne's Trustees (2 Menz., 105)
discussed
Per de Villiers, C. J.— The Court had more
than once intimated that, although it con-
sidered itself bound by that decision (Harris
v. Buissinne's Trustees) it would do
nothing to extend the principles laid down
in that case to other cases unless it felt
itself compelled by principles of law to do
so, McGregor's Trustees v. Silberbauer 837
Insolvency— Ordinance 6 of 1843, Sec. 103—
Deed of Sale — Election by trustee —
Cairnoross v. Sheard ... ... ... 356
Interdict on money in hands of third person —
Set off — Promissory notes not yet due —
Contempt of Court — Levin v. Garlick ... 25
Interdict granted restraining removal and sale
of furniture attached by judgment of a
Resident Magistrate pending an action to
be brought for recovery of rent — Webster
v. Solomon ... ... ... ... 89
Interdict — An interdict will not be granted
unless a prima facie case has been made —
Van Zyl v. De Beer's Executrix 59-75-78
Interdict — Restraining sale of effects attached
by Deputy-Sheriff pending decision of
Court as to property in said effects —
D'Arc v. Benson & McDermott ... ... 54
Interdict — Nuisance — Brewery refuse —
Claremont, Rondebosch and Mowbray
Municipalities v. Ohlsson's Cape Brew-
©XM©8« a • ••• a • • «*• •» • O^fc
Judgment — Application for leave to sign
against plaintiff for failure to proceed
with his action — Dalton v. Quine ... 50
Judgment— Execution — Return of nulla bona
—Share in immovable property — Attach-
ment — Searle & Co. v. Stander ... 287
Land — Option of purchase — Neglect to ex-
ercise same — Sale — Refusal of Registrar
of DeedB to pass transfer — Rule nisi
Petition of Alfred Bevern ... .., 274
Landlord and tenant— Act 20 of 1886, Sec. 26
— Removal of goods by tenant — Attach-
PAQB
ment — Lien — Mandamus — Warren v.
Clements ... ... ... ... 287
Landlord and tenant — Forcible entry— -Inter-
dict— Costs— Muszlak v. Cole E56
Landed property settled by ante-nuptial
contract— Sale — New investment — Peti-
tion of C. Atmore ... ... ... 121
Lease— Executable — Judgment— Act 19 of
1864— Practice— Graaff v. Klerok ... 1
Lease — Hire and purchase system — Cancel-
lation of agreement owing to failure of
monthly payments — Tacit renewal of
lease — Claridge v. Kellaway ... ... 47
Lease — Reduction of rent — Unlimited period
—New arrangement — Construction — The
Churchwardens, Dutch Reformed Church,
Aliwal North v. Green ... ... 144
Lease — Lessor and Lessee — Debris washing-
Tacit relocation — Interdict
De Beers Consolidated Mines (Limited), v.
Good ... ... ... ... 181
Lease — Alleged breach of covenant for quiet
enjoyment — Nuisance — Loss of business
— Damages — Counterclaim — Tender —
Costs— Gill v. De Vries ... ... 289
Lex Anastasiana — Promissory note — Cession
— Purchase of rights under judgment —
Counterclaim — Appeal -Practice of the
Dutch Courts — Right of retraction —
Customs of commerce — Abrogation of
laws by disuse — Obligatory force of the
body of Dutch laws existing at the begin-
ning of the present century
Per De Villiers, C.J. — All modem commercial
dealings proceed upon the assumption that
binding contracts will be enforced by Courts
of law, and that debtors do not evade
liability in full by reason of their creditors'
dealings with their debts, provided only
those dealings are bonajide and in accor-
dance with law
Now, as to any statute enacted by the Legisla-
ture of this colony, I should have great
difficulty in holding that disuse for any
length of time would be sufficient to abrogate
it. If such a statute is no longer required,
the Legislature, which must be presumed to
be acquainted with the body of its own
statute laws, is at hand to enact the repeal.
But the body of laws introduced from
Holland, including Dutch statutes, stand on
a different footing. They are not to be
found in any code or authentic document to
which easy reference can be made, and it is
often only through a judicial decision upon
a disputed question of law that the Legis-
lature becomes aware of the existence of a
particular law.
The conclusion at which I have arrived as to
DIGEST OF CASES.
IX
PAGE
the obligatory force of the body of Dutch
laws existing at the beginning of the present
century may be briefly stated. The pre-
sumption is that every one of these laws, if
applicable to the circumstances of this
colony and not repealed by the local Legis-
lature is still in force. This presumption
will not, however, prevail in regard to any
tule of law which is inconsistent with
South African usage. The best proof of
such usage is furnished by unoverruled
judicial decisions. In the absence of such
decisions the Court may take judicial notice
of any general custom which is not only
well-established but reasonable in itself.
Any Dutch law which is inconsistent with
such icell-established and reasonable custom
and has not, although relating to matters of
frequent occurrence, been distinctly reco-
gnised and acted upon by judicial decision
may* fairly be held to have been abrogated
by disuse. The law of retraction as applied
to the sale of debts is inconsistent with the
reasonable and well-established custom of
persons engaged in commerce in this
country, and, until the recent decision in
the Eastern Districts Court, it had not been
recognised and acted upon by the superior
Courts of the Colony, although numerous
cases must have arisen to which '.it was
applicable. It had therefore practically
been abrogated by disuse and was not
revived by that judgment
Seavill v. Colley ... ... ... ... 320
Libel — Application for particulars of alle-
gations contained in alleged libel refused,
the Court being of opinion that the
charges made were sufficiently " specific "
— Sturrock v. Birt ... ... ... 20
Libel — Damages — Company — Meeting of
Shareholders — Directors' Report — Pub-
lication — Boose v. Weodhead <ft others ... 61
Libel — Damages — Action — Settlement by
consent — Sturrock v. Birt ... ... 815
Licence— Act 28 of 1883, Sees. 42, 47 and 48—
Rights of Licensing Court — Refusal to
grant licence — 190th Rule of Court — Re-
view — Miller v. The Richmond Licens-
ing Court ... ... ... ... 146
Licensing Court—Act 28 of 1883, Sec. 60—
Refusal to renew a licence which had
been held for three yean — Appeal
Notwithstanding Section 50 of Act 28 of
1888 the members of a Licensing Court
can decide from their own personal
knowledge whether the renewal of a
licence should be granted or not
Barnett 6 Co. v. The Namaqualand Licensing
Court ... i.. ... ... 186
PAGE
Liquidator — Leave of absence— Petition of
H. Bolus ... ... ... ... 80
Petition of L. A. Vintoent ... ... 847
Magistrate's jurisdiction— Exception— Act 20
of 1856, Sec 8
Bain's Executor v. Haupt... ... ... 198
Magistrate's jurisdiction —Act 20 of 1856, Seo.8
—Title to land in dispute — Koller v. Abas 200
Maintenance — Application for funds in pos-
session of Master by brother of person
entitled — Locus standi of applicant-
Power of Attorney— Rule nisi — In the
estate of the late H. M. Overbeek ... 124
Marriage according to Mahomedan rite-
Illegitimate children — Succession through
Mother — Funds in possession of Master
Jassiem and others v. The Matter and Steytler 212
Marriage — Nullity — Prima facie evidence
that defendant's husband by a former
marriage was alive when she married
plaintiff — Bona Jldes ©f both parties —
Ante-nuptial contract — Deed of separa-
tion — Custody of child issue of second
marriage— Maintenance — Hatch v. Hatch 296
Marriage in community — Will — Disposition
of entire estate — Speoifio legacy — Abate-
ment — Jus accrescendi — Alleged renunci-
ation of rights by acquiescence — Declara-
tion of rights
Where a spouse married in community of
property had disposed of the entire
estate by will to the prejudice of his
wife, who was ignorant of her rights, and
who was not proved to have elected to
abide by the will, the Court held her
entitled to half of the joint estate, and in
consequence ordered the abatement of a
specifio legacy left by the will
Per de Villiers, C.J. — No doctrine is better
settled in our law than that a person cannot
be held to have renounced his legal rights
bt/ acquiescence unless it is clear that he had
full knowledge of his rights and intended to
part with them
Watson v. Burchell's Executors ... ... 296
Master and servant — Alleged wrongful dis-
missal — Damages — Disobedience of
servant — Justifiable dismissal
Woodman v. Robinson ... ... ... 263
Masters and Servants' Act — Police Act —
Using abusive and obscene language —
Conviction quashed — Regina v. Loontjes 71
Minor — Authority given to Master to con-
tinue payments towards maintenance and
education— In re the Minor Kemper ... 64
Minors — Application te draw from South
African Association sufficient funds to
provide for maintenance and education —
In the Estate of the late J, A. Laubsoher \
DIGEST OP CASES.
PAGE
Mortgage — Raising of loan by on property of
deceased person — In re Glynn (deceased) 3
Mortgage of landed property in estate of
deceased person to pay off bond and other
debts— 7h re Martin (deceased)... ... 11
Mortgage of landed property to meet calls on
shares in bank in liquidation — In the
Estate of the late John Wright, M.D. ... 1
Mortgage of landed property in estate of
deceased person to meet calls on shares in
bank in liquidation— In re the Estate of
Thomas Hall (deceased) ... ... 11
Mortgage — Application to raise loan en for
purpose of executing necessary repairs
and satisfying debts — In the Estate of
Samuel Phillips ... ... ... 35
Mortgage — Leave given curators of estate of
lunatic to raiie money by mortgage of
landed property to pay off debts due by the
lunatic — In the estate of M. A. Hopkins 98
Mortgage Bond — Application for cancellation
of — Rule nisi — In the estate of the late
Samodien ... ... ... 124, 156
Mortgage Bond — Cancellation of — The Cape
of Good Hope Bank (in liquidation) ... 85
Mortgage Bond — Cancellation of cession —
Non-compliance with Act 3 of 1864, Sec
13— Rights of mortgagor not affected —
Mostert v. Registrar of Deeds ... ... 19
Mortgage Bond — Application for cancellation
of— In re Groove ... ... ... 18
Mortgage Bond — Application for cancellation
of refused where mortgagor was exe-
cutor ef mortgagee's estate— In re Burger 19
Mortgage Bond — Cancellation on grounds that
mortgagee had been paid— In re F.J. van
MAjL • a • •• a • ■ • ••• •• • OV
Mortgage Bond— Provisional sentence on post-
poned where mortgagor had denied his sig-
nature — Execute) s of De Klerk v. De Klerk 29
Mortgage Bond — Misdescription in Debt Re-
gister — The Dutch Reformed Church,
A dderley -street v. Registrar of Deeds ... 75
Mortgage Bond — Application for cancellation
of where bond could not be found after
death of mortgagee — Rule nisi— In the
estate of the late Herman Oppenheim ... 184
Mortgage Bond — Omission of general clause
'—Amendment — In re the application of
J. H. Lamb ... ... ... ... 186
Mortgage Bonds— Satisfied and subsequently
lost or mislaid — Application for cancel-
lation of — Rule existing ia Registry of
Deeds, Cape Town— Refusal to comply
with rule by Registrar of Deeds, King
William's Town— Rule nisi granted— The
Cape of Good Hope Bank (in liquidation) 50
Municipality— Municipal Regulations— Cess-
pools — Where a Municipality has by 'its
PAGE
regulations power to close cesspools it
cannot compel an inhabitant to empty
and close a cesspool situated on his land
— Van Heerden v. The Municipality of
Victoria West... ... ... ... 70
Municipality — Municipal Regulations— Reg-
ulating " traffic and processions "—
Salvation Army— Ordinance 9 of 1836 and
Act 45 of 1882— Clack and Others v. The
Resident Magistrate of Graaff-Reinet ... 78
Negligence — Damages — Bursting of dam —
Vis Major— Kunn v. Schalkwyk ... 55
Negligence — Executors — Alleged mal-admin-
ist ration of estate— Damages
Nel & Tiran v. Lind & Tiran ... ... 257
Negligence — Grass fire — Damages — Com-
brinck v. Mybnrgh ... ... 130-136
Non-jurisdiction and Irregularity — Act 20 of
1856— 190th Rule of Court— " Judicial
Proceedings capable of being reviewed" —
Where a Resident Magistrate not in his
magisterial capacity but as " Head of the
District" had settled a dispute between
two natives such a proceeding was held
not to be a judicial proceeding capable
of being reviewed within the 190th Rule
of Court — Duna v. Sabenkola ... ... 70
Nuisance — Municipality — Distillery refuse —
Open drain — Interdict suspended — The
Paarl Municipality v. Blignaut... ... 77
Ordinance No. 104, Sec. 33 — Administration ac-
counts — Non-compliance with terms of
Statute — Costs de bonis propriis — Auret
v. Executor of Haarhoff ... ... 132
Partnership — Disagreement of partners —
Notice of dissolution — Deed of partner-
ship — Right of election — Receiver
Where partners had disagreed, and one part-
ner had given notice of dissolution, the
Court, on the application of the latter,
appointed a receiver until the other
partner should elect whether he would or
would not purchase the share of the
applicant in the business, and failing
such election within three months from
the date when the value of the assets
had been ascertained in terms of the
deed, authorised the receiver to finally
liquidate the affairs of the partnership
Caporn v. Marriott ... ... ... 304
Partnership— Statement of account — Alleged
breach of agreement— Dissolution by
mutual consent — Counter-claim — Ross v.
Scott & Armstrong ... ... ... 24
Pauper— 125th Rule of Court
The Court refused to make absolute a rule nisi
admitting an applicant to sue in forma
pauperis where from the surrounding
circumstances it appeared probable that
DIGEST OF CASES.
xi
PAGE
the applicant had, or could obtain,
funds sufficient • to > proceed with his
action in the ordinary course — Shakofsco
v. Van Noorden ... ... ... 121
Perpetual silence — Decree of
Where V. had threatened to bring an action
against L. for negligence the Court re-
fused to issue a decree of perpetual
Bilence against V. on the latter's under-
taking to proceed with the action within
a reasonable time — Lind v. Van der Veen 112
Pledge in the nature of sale
Where goods, the property of a wife married
out of community, had been pledged by
her husband without her authority, and
subsequently sold by the pledgee without
having obtained a judgment, the Court
ordered the pledgee to re-deliver the
goods, or failing delivery, to pay their
value less the sum advanced by him on
the same
Wilson v.Shaw ... ... ... ... 29«J
Pound Master - Divisional Council — Civil
Commissioner — Ordinance 16 of 1847,
Sec. 18 -Damages for alleged contraven-
tion—Exception to summons — Act 1 of
1867 and Act 40 of 1889, Sec. 2 Hi-
Appeal— Langford v. Marais ... ... 2G6
Pound Ordinance— Act 31 of 1875, Sec. 3—
Contravention — Trespass — Consequential
damages — Resident Magistrate's decision
— Appeal — Staples v. Swanef elder ... 140
Practice— Pleading— Purging default— Stew-
art v. Kingon ... ... ... 101
Practice — Pleading— Bar — Security for costs
— Claim in reconvention — Judicatum solvi
—Lawrence v. Ward <k Weasels — Coronel
v. Ward & Weasels ... ... ... 134
Practice — Decree of civil imprisonment —
Nulla bona— Insufficiency of Sheriff's
return — Bate v. Nel ... ... ... 103
Practice— Rule of Court 330 (a)— Pleadings
—Bar
Van Zyl v. De Beer ... ... ... 196
Practice— Process in aid— Rule of Court 219
— /» re Auret... ... ... ■•• 380
Practice— 370th Rule of Court— Revived
judgment— Petition of the Cape of Good
Hope Savings' Bank ... ... ... 308
Practice - - Costs — Counterclaim —A ppeal—
Van Rhyn v. Van Zyl... ... ... 311
Process in aid of judgment of High Court—
D'Arc v. Benson & McDermott... ... 19
Process in aid of judgment of Eastern Dis-
tricts Court — Scallan'a Executors v.
Voortman ... ... ••• ... 20
Promissory Note — Unstamped — Penalty-
Provisional sentence — Executors of
Jioynes v. Cochrane ... ... ... 49
PAGE
Promissory note — Provisional sentence — Pay-
ment into Court
Where on an application for provisional sen-
tence on a promissory note the defendant
alleged that he had a claim for damages
against the plaintiff and prayed that the
amount of the judgment should be paid
into court to abide the result of the
action, the Court refused to accede to the
defendant's request and granted provi-
sional sentence — Stegmann v. Cohen ... 102
Promissory Note — Provisional sentence —
Arrangement entered into between
maker and payee — Holder in due course
— Notice — Stephan v. Lipsett k Wife ... 183
Promissory note — Fixed deposit receipts —
Compensation — Cession of action — Pro-
visional sentence — Final judgment.
The mere fact of indorsing a non-negotiable
instrument does not per *e constitute the
indorsee the legal holder unless there has
been a bona-fide cession of action.
A. cannot set off as against B. (A.'s creditor)
a debt due by B. to C, although C. con-
sents, unless C. has ceded his right of
action to A. The Cape of Good Hope
Bank (in liquidation) v. Forde A Co .. 137
Promissory note — Provisional sentence —
Supreme Court costs — A. v. B. (Buch.
1868. p. 240) considered— Act 20 of 1856,
Sec. 35— Sluiter & Neser v. Medcalf 146
Provisional sentence — Lease — Arbitration
clause — Repairs — Rent — Daniel <x Co. v.
Siebert &. Van Keden ... ... ... 323
Provisional sentence — Liquid document —
Every liquid document upon which pro-
visional sentence is prayed must be
stamped — Uys v. Baartman ... ... 11 J
Provisional sentence — Promissory notes —
Cession— Defence — Fraud — The Unioii
Bank (in liquidation) v. Uys ... ... 118
Railway Restaurant licence — Act 44 of 1885,
Sec. 6 — Contravention — Conviction —
Appeal — Regina v. Logan ... ... 119
Report, First, of Liquidators — Paarl Bank ... 12
Report, Second, of Liquidators— Cape of
Good Hope Bank ... ... ... 21
Report — Third of liquidators — Cape of Good
Hope Bank ... ... ... ... 112
River — Ripari n proprietors — Springs —
Streams — Sources — Diversion of watf r —
Reservoir — Damnum sine injuria — Inter-
dict — Damages — Chasemore v. Richard*
(7 H L. Ca, 349) and Grand Junction
Canal Co. v. Shnyar L. R. 6 Ch., App.
483) discussed— Struben v. The Cape
Town District Waterworks Co. ♦.. 388
Sale— Conditions— Payment by instalments —
Provisional sentence refused where period
1
• *
Xll
DIGEST OF CASES.
PAGE
within which first instalment was t ) have
betn made had not expired — Botma v.
Botma ... ... ... ... 72
Sale — Justus error — Restitutio in integrum —
Fixtures — Broker's note — Notice — Con-
duct of vendor such as to induce vendees
to believe that they were buying articles
which had previously been sold — Tender
— Arbitration — Costs — Copeland v. Short
& Co.
141
Securities in possession of bank — Refusal to
realise — The Union Bank (in liquida-
tion), in re ... ... ... ... 30
Seduction — A ction — Damages — M aintenance
— Joubert v. Thompson ... ... 860
Shares in bank in liquidation — Non-indorse-
ment — Pledge
Where unindorsed shares had been pledged
as collateral security on an overdue pro-
missory note, and the shares were
olaimed by the pledgor's brother, the
Court refused on motion to order the
respondent (the brother) to transfer the
shares or to give a power of attorney
authorising applicants to receive divi-
dends due or to become due in respect of
the same
Mortimer & Co. v. Herbst... ... ... 286
Ship— Arrest ad fundandam jurisdictionem—
In re the barque " Hera " ... ... 20
Ship — Cessor of charterer's liability— Lien by
shipowner for freight, dead freight and
demurrage — Custom of port — Case
governed by English law — Lane v. Sorens-
sen in re " Saga "
26
Slander — Action for damages — Case dismissed
—Appeal — Assistant Resident Magis-
trate's judgment reversed — Boonzaier v.
Castens ... ... ... ... 159
Slander — Action for damages — Privileged
communication — Social duty — Cilliers
v. Pienaar and wife ... ... • ... 101
Support adjacent and subjacent — Lease of
diamondiferous claims — Trespass — Act 10
of 1883- In the absence of stipulation to
the contrary in a lease the right to lateral
support exists as a natural right incident
to the lessor's hand when the latter is the
adjoining owner — Londen and South
African Exploration Company v. Ronliot 4
Surety — Bond — Partnership — Where a person
has become surety for another under a
bend and has renounced the beneficia
nettling that such other person may have
done can affect the rights of the bond-
holder against the surety* Green A Co. v.
Beveridge ... ... ... ... 69
Telegrams false— Vide Regina v. Russouw ... 113
Transfer— Bond on property — Refund of
PAGE
purchase money — Fefusal to cancel — In re
Cunningham ... ... ... ... 76
Transfer— Action for — Written agreement
of sale and purchase — Cancellation — Van
Zyl v. De Beer ... ... ... 280
Transfer — Action for— Power of Attorney —
Signature obtained through alleged fraud
and mis - representation — Trespass —
Counterclaim
Kincaid v. Nixon's Executors ... ... 242
Transfer of landed property
Under special circumstances leave given wife
married out of community of property,
the maritial power not being excluded,
to sell and give transfer of settled land
without concurrence of her husband
Petition of M. E. Lippert... ... ... 268
Trespass— Damages— Road— Divisional Coun-
cil—Acts 27 of 1884 and 40 of 1889—
Perpetual interdict — Gill v. Hiisch ... 63
Trespass — Application to make rule nisi
absolute — Rule suspended — Action to be
brought— Colonial Orphan Chamber v.
Marnitz ... ... ... ... 76
Trespass — Interdict — Rule nut made absolute
—Meyer v. Reisberg ... ... ... 76
Trespass— Action for damages — Interdict-
Mining Board— Act 19 of 1883, Sec. 34—
" Exclusive control and management of
Mining Area"— Statutory reserve — En-
croachment — " Mining operations " —
Construction— Ordinance No. 11 of 1880
— Griqualand West — Bye-laws — Appeal
from judgment of High Court
The Bultfontein Mining Board v. Armstrong
and the L. & S.A. Exploration Company,
(Limited) ... ... ... ... 192
Trespass— Action for damages— Declaration
of rights — Prescription — Land Beacons
Act No. 7 of 1866, Sec. 47 (a), (6)
Jansen v. Cenradie ... ... ... 226
Trespass — Action — Damages — Right to sell
timber under agreement — Boundaries—
Barrington v. Barnard ... ... 292
Trespass — Action — Damages — Tender— Costs
— Colonial Orphan Chamber v. Marnitz 342
Trespass — Private road —Damages —Inter-
dict — Ohlsson's Cape Breweries (Limited)
v. Whitehead ... ... ... ... 344
Trustee — Appointment of to administer trust
fund constituted by ante-nuptial contract
— In the estate of the late J. B. Evans... Ill
Trustee — Extension of time within which to
file final accounts allowed— In the Insol-
vent Estate of Aunn ... ... ... 36
Trustee— Removal under Sec. 62, Ordinance
6 of 1848— In the Insolvent Estate of
Van Reenen ... ... ... ... 286
In the Insolvent Estate of Morrison ... 286
DIGEST OF CASES.
•• •
Xlll
PAGE
Trustees — Appointment of trustees by
Chancery Division of High Court of
Justice (England) confirmed — In re
Luscombe's Trust Fund ... ... 72
Trusteeship — Application to be relieved of —
Consent of joint trustee— In the Estate
of the late John Miller... ... ... 84
Vagrancy — Act 23 of 1879 — Conviction under
Sec. 2 — Appeal — Regina v. Christian
Carolus ... ... ... ... 281
Venue — Change of — Regina v. Manel ... 88
Wagons — Contract to make — Delivery —
Acceptance — Workmanship — Action —
Preiss v. Gluokmann ... ... ... 116
Will — Construction — M Absolute right " or
" defined interest " — Morgan & Coltman v.
Executors of Grewer ... ... ... 8
Will — Mutual— Codicils made subsequently to
testator's death — Exception.
Where under a mntual will a daughter had
acquired a '* vested interest'" her execu-
tors are the proper persons to sue and not
her children — Marais v. Rensburg ... 10
Will — Where P., who had inherited certain
money under the will of his father, had
deserted his wife and had not contributed
to her support or to that of the children of
the marriage, he was *n his wife's petition
ordered to pay over to her half the amount
coming to him under his father's will —
Petition of A. J. Fourie ... ... 64
Will — Alienation of landed property pro-
hibited— Qnitrent — Application for leave
to sell — In the Estate of W. Pretorius
(deceased) ... ... ... ... 34
Will — Executors exempted from filing
accounts — Ordinance No. 104 — Notioe —
Where a testator has by his will exempted
his executors from filing the ordinary ad-
ministration accounts notioe ought to be
given to the executors before calling upon
them to conform to the provisions of
Ordinance 104 — in the Estate of the late
John Jamieson ... ... ... 73
PAOB
Will — Landed Property— Executor dative —
Maternal inheritance — Debts dne by
estate — Where under a will the sale of
landed property had been prohibited the
Court refused to empower an executor to
sell the property to meet existing claims
until satisfied that sufficient money for
that purpose could not be raised by way of
mortgage — In the Estate of the late
J. o. .Masters ... ... ... ... 70
Will — Mutual — Codicils — Construction —
Creation of poor fund for benefit of
needy relations — Administration — Special
case — The Dutch Reformed Church v.
The Master & South African Association 122
Will— Mutual — Fiduciary and Fidei-Com-
missary heirs — Prohibition to alienate—
Construction — Special case — Nel & others
v. Nel's Executors ... ... ... 126
Will — Codicil — Fidei-commissum — Executors
Testamentary and Dative — Bond — Gift
or loan — Shares in bank in liquidation —
Residuum-— Costs — Honeyborne v. Honey-
borne
... 139
Will — Legacy — Prohibition against alien-
ation—Bond—Registration refused by
Registrar of Deeds— Petition of F. H.
Naude and wife ... ... ... 282
Winding-up Act— No. 12 of 1868— Applica-
tion to be placed under operation of — /n
re the Omaruru G. M. Co. (Limited) — 119
In re The Knysna C. G. M. Company
(Limited) ... ... ... ... 184
Winding-up Act— No. 12 of 1868— Application
to be placed under operation of — In re
the Wellington Bank (in liquidation) ... 181
Winding-up Act— No. 12 of 1868— Company
placed under operation of, on application
of executors of deceased shareholder
In re the Cape Stock Farming Co. (Limited) 283
Writ of arrest -Action pending— Appearance
entered — Writ discharged — Lyons &
Sons v. Caissac ... ... ... 866
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